How Norms Die: Torture and Assassination in American Security Policy

A large and impressive literature has arisen over the past fifteen years concerning the emergence, transfer, and sustenance of political norms in international life. The presumption of this literature has been, for the most part, that the winds of normative change blow in a progressive direction, toward greater or more stringent normative control of individual or state behavior. Constructivist accounts detail a spiral of mutual normative reinforcement as actors and institutions discover the advantages of normative self- and other evaluation. There is also now much interesting research focused on the question of how to predict the emergence of future norms.I focus, however, on a different issue here: the death of norms that had once seemed well internalized and institutionalized. The issue arises in relation to one of the most dramatic features in the defense policy of the United States since 2001: the crumbling of highly restrictive normative regimes prohibiting interrogatory torture and assassination as part of the “global war on terror.” My aim here is to sketch what I take to be the central features of cases in which even norms that are clearly defined and apparently well internalized in a democracy nonetheless lose their grip on policy. The ultimate lesson, however, is an unappealing irony: While democracies surely do better than authoritarian regimes in adopting and internalizing certain kinds of constraints, in part because of a greater sensitivity to public mobilization around normative questions, that same sensitivity makes the long-term survival of these norms precarious. In particular, I suggest that force-constraining norms are most effectively internalized by coherent and relatively insulated professional cadres who see themselves as needing to act consistently over time. But in a democracy the values and arguments of those cadres are susceptible to being undermined by a combination of public panic and the invocation by policymakers of a public interest that can override the claims both of law and pragmatic restraint. Democracy, hence, can be at the same time both fertile and toxic: fertile as a source of humanitarian values and institutions, but toxic to the very institutions it cultivates.The model I will describe may be of predictive use in helping us to see the special vulnerability of normative orders in democracies. But my hope is that it is also constructive in showing us how states and institutions committed to maintaining a certain normative order, especially democratic states, might best try to entrench those norms. While my argument is conceptual and philosophical, it draws on this recent history. I also add two qualifications to this article's title. First, I am not addressingallnorms, but specific norms concerning the state use of force in national security policy. I therefore do not make claims about the generalizability of the conflict I describe to other norms, for example, norms of racial, sexual, or religious orthodoxy or hierarchy, or norms of reciprocal interaction. Second, reports of a norm's death are frequently exaggerated, since norms can be latent, then resurrected. Arguably, the anti-torture norm was resuscitated by President Obama in 2009 when, as one of his first official acts as chief executive, he moved to prohibit cruel, inhuman, and degrading treatment of detainees. I write here about the path of decay, whether or not that path is unidirectional, and why previously salient norms no longer seem to govern policy choice among political decision-makers.