Untaming The Prince

Bryan Finoki interviews Tom Hilde:

...it's not that torture had been non-existent in liberal states until the torture shown in the Abu Ghraib photos. The US torture at Abu Ghraib, Guant
amo, Baghram, and elsewhere reflects the techniques developed through CIA documents dating to the 1950s. The liberal state, more generally, has always functioned on an opposition between its conception of civilization - grounded in a liberal conception of rationality - and what's beyond civilization.

That is, "barbarism." In the name of basic liberal principles and of rationality itself, the liberal state must be defended against its barbarian enemies. But since these principles - of, for instance, autonomy, liberty, dignity, etc. - in the liberal political-philosophical tradition are taken as universal (for Kant, for example, grounded in natural law), and since torture is a fundamental denial of those principles, the liberal state had to conceal torture. Foucault suggests something similar in Discipline and Punish. Torture, when practiced by liberal states, could never find a place in actual law. Otherwise, we’re no longer talking about liberal states, but something else.

Torture is fundamentally extra-legal in this sense and this is why there's so much talk of states of exception and states of necessity. But this is also why the Bush administration's institutionalization and attempted legalization of torture is so radical. It's an assault on the foundational principles of the liberal state.

But it remains a fact that the torture examined and tolerated by the CIA in other states and societies was never imported wholesale into the American Constitution before Bush and Cheney, let alone regarded as inherent in the American presidency. Which is why what they have done in this respect has been so radical.

They have imported a solvent into the rule of law. Which is why, if we are to recover, they must now be subjected to it.