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Plausible LegalityLegal Culture and Political Imperative in the Global War on Terror$
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Rebecca Sanders

Print publication date: 2018

Print ISBN-13: 9780190870553

Published to Oxford Scholarship Online: August 2018

DOI: 10.1093/oso/9780190870553.001.0001

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(p.33) Chapter 3 Torture
Plausible Legality

Rebecca Sanders

Oxford University Press

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.

Keywords:   9/11, global war on terror, torture, Office of Legal Counsel (OLC), enhanced interrogation techniques, waterboarding, torture memos, extraordinary rendition, Abu Ghraib, Guantánamo Bay

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