Lawyers, Litigation, and the U.S. Anti-Torture Campaign

This paper focuses on the anti-torture campaign that was catalyzed into existence in mid-2004 following the publication of the Abu Ghraib photos and the release of the first batch of "torture memos." Because the Bush administration essentially "legalized" torture, litigation has been the primary means of challenging the US's interrogation and detention policies and practices, and because of the complexity of issues at stake (e.g., status of enemies in the context of a "global" asymmetrical war, applicability of international humanitarian laws), anti-torture activism has been monopolized by lawyers and legal intellectuals. Unlike the contentious politics of civil rights struggles in which the victims (or would-be beneficiaries) are part of the same society as those engaging in legal activism on their behalf, with a handful of exceptions, the victims of the US torture policy are foreigners. Moreover, pervasive misrepresentations by US officials (e.g., former VP Cheney) about the efficacy and benefits of torture and indifference or hostility to victims, lawyer-dominated anti-torture activism tends to run counter to public attitudes. The empirical details and socio-legal analysis are drawn from my research on five categories of legal mobilization: 1) habeas representation of GITMO detainees; 2) defense of "high value targets" slated for prosecution; 3) civil suits against US officials and corporations on behalf of victims of US torture; 4) Freedom of Information Act litigation to make public information about the torture policy; and 5) the disputed and nascent efforts to hold the authors of the torture policy legally accountable