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Despite its universal and absolute prohibition in international human rights and humanitarian law, torture has persisted even in liberal democracies. This chapter traces how changing national security legal cultures have shaped justifications for torture in the United States, culminating in an extensive torture program in the global war on terror. A culture of exception helped legitimize slave torture, lynching, and colonial torture through much of the United States’ early history, while a culture of secrecy facilitated covert and proxy torture during the Cold War. After 9/11, American authorities operated in a culture of legal rationalization. Rather than suspend or ignore the torture prohibition, the Bush administration sought legal cover for torture. As evidenced by the torture memos, lawyers reframed practices such as waterboarding as lawful enhanced interrogation techniques. These attempts to construct the plausible legality of torture effectively immunized Americans from prosecution for grave human rights violations.

This chapter provides a detailed timeline regarding formulations and uses of torture related to the “war on terror” beginning in September 2001 and extending to May 2010. It foregrounds the pervasive use of euphemism by the Bush administration in skirting U.S. and international laws regarding torture, humane treatment of prisoners, and habeas corpus and details both the techniques and consequences of the “enhanced interrogation” practices employed at Guantánamo and other detention centers. It characterizes the “looking forward” posture of the Obama administration as a form of denial enabled by ongoing practices of euphemism and describes the legacy of legal impasse in litigating “high-value detainees” and seeking redress for victims of torture.

The “torture memos” defending the treatment of detainees considered ineligible for due process only confirm that in jurisprudence, “cruelty,” despite its polemical power as an ordinary-language term, is considered less serious than torture. Colin Dayan locates the origin of the memos’ rhetorical maneuvers in the distortion of the Eighth Amendment provision against “cruel and unusual punishment” by the institution of slavery and by the subsequent perpetuation of slave-status for incarcerated felons. The chapter links the history of interpretation of the Eighth Amendment to the discussion of cruelty in American philosophy (in the work of Richard Rorty, Martha Nussbaum, and Judith Butler), where it is variously defined as a failure of noticing, sympathy, love, or identification. The chapter traces the implications of the fact that diametrically opposed perspectives—the defense of torture and the critique of the war on terror—are implicated in an interpretative erasure of any specificity to cruelty.

Following a trail of state documents, this chapter examines how the U.S. government produced not only a new rightless subject in the “enemy combatant,” but also a parallel, quasi-legal system created specifically to perform the workings of justice, while in fact maintaining conditions of rightlessness in the face of legal and political challenges. Based on research in the Torture Archives and records of the Department of Defense, I trace a legal history of these emergent subjects and systems by analyzing executive memos that circulated following September 11, 2001 attacks; federal court cases like Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008); and legislation like the Detainee Treatment Act (2005) and Military Commissions Act (2006, 2009). The chapter then focuses on the testimonies of enemy combatants, who seized the opportunities to speak before the quasi-legal stages of the Combatant Status Review Tribunals and military commissions to testify to the realities of rightlessness and leverage incisive critiques of U.S. state violence.

This introductory chapter describes the symposium “The Humanities in the Public Sphere,” which furnished the material for this book. The issue of the U.S. Department of Justice’s Torture Memos as well as the author’s classroom experience in interpreting legal texts have led him to the claim that the humanities can, and at their best do, represent a commitment to ethical reading. This commitment, and the training and discipline of close reading that underlies it, represents something that teachers of the humanities need to bring to other fields, especially those that undertake the training of professional readers such as lawyers, whose work includes interpretation.

Lawyers cravenly prostituted the rule of law and courageously defended it during the U.S. “war on terror.” Richard L. Abel examines these extremes to understand how law can become infamous and what follows from its infamy. He begins with two examples of law’s betrayal: John Yoo’s infamous “torture memos” and Charles “Cully” Stimson’s disgraceful attack on the pro bono lawyers representing Guantánamo Bay detainees. Then he turns to some of law’s unlikely defenders: a handful of government lawyers who began as loyal foot soldiers in the war on terror but were transformed by the abuses they witnessed into becoming champions of law. He concludes by using these case studies to analyze how law becomes infamous and how it is rescued from infamy.

The conclusion suggests that when the law of nations traded poetry for professorships and donned the new garb of international law, it did not erase its literary history. Early modern poetics remains present in the modern structures of international law. From the plural, overlapping landscape of early modern genres came the plural, overlapping landscape of subspecialties now identified as international law. The eighteenth century gave us two altars at which we might sacrifice the literary history of international law: literary aesthetics and a professionalized field of international law. We do better, however, by studying the ways early modern genres continue to shape our world.