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This chapter examines the U.S. legal discourse on torture in the period after 9/11 to determine whether policies on interrogation and torture constitute a “state of exception” or represent a continuity in state policies. In particular, it considers whether the state-of-exception argument adequately captures the torture debate in the context of Guantánamo Bay (and by extension Abu Ghraib). It argues that a more useful framework for understanding the torture debate is to focus on the tension between law and violence in liberal democracies, rather than on the state-of-exception argument. To illustrate this tension, the chapter analyzes the Bybee/Yoo memo, one of the most controversial and significant moments of the torture debate both symbolically and conceptually. It also discusses the Supreme Court's response to the so-called exceptional policies introduced by the president in the post-9/11 period, along with its implications for the torture debate. Finally, it uses Michel Foucault's concept of juridico-medical complex to explore how medical professionals have been drawn into the state's attempt to accommodate excess violence.

This chapter examines the U.S. legal discourse on torture in the period after 9/11 to determine whether policies on interrogation and torture constitute a “state of exception” or represent a continuity in state policies. In particular, it considers whether the state-of-exception argument adequately captures the torture debate in the context of Guantánamo Bay (and by extension Abu Ghraib). It argues that a more useful framework for understanding the torture debate is to focus on the tension between law and violence in liberal democracies, rather than on the state-of-exception argument. To illustrate this tension, the chapter analyzes the Bybee/Yoo memo, one of the most controversial and significant moments of the torture debate both symbolically and conceptually. It also discusses the Supreme Court's response to the so-called exceptional policies introduced by the president in the post-9/11 period, along with its implications for the torture debate. Finally, it uses Michel Foucault's concept of juridico-medical complex to explore how medical professionals have been drawn into the state's attempt to accommodate excess violence.

This chapter examines what effort was made to identify all important classes of consequences and then to predict and assess them. It begins with the overall government choice and, after that, looks specifically at the decision by the Office of Legal Counsel (OLC). Nowhere in the process leading up to the Bybee memo, nor in the series of discussions after that, does anyone seem to have carefully considered the categories of cost, or the doubts about benefits, associated with the decision the White House seems to have wanted. On October 5, 2005, the Senate voted on John McCain's amendment to a military spending bill, which would prohibit cruel, inhuman, or degrading treatment of detainees in US custody anywhere in the world.

Defining limits of coercive interrogation is put to the test when an interrogator is sitting across from someone who is not cooperating and the interrogator knows is in possession of information purported to be urgent. It is exactly at that moment that the previously established lawful limits of interrogation must be implemented, no matter the circumstance. Otherwise, excess will be permitted, encouraged, and will inevitably occur. This chapter is divided into three subsections: 1) definitions of torture; 2) an analysis of interrogation methods based on an Israeli High Court of Justice holding, Ireland v. United Kingdom, and a 1984 Israeli Commission of Inquiry; and 3) an analysis of functional torture and sadistic torture.