Abstract

Torture has become the subject of intense debate in recent years. One facet of that debate is whether there are any circumstances during which it might be an appropriate response by a respectable government. One might wonder precisely why torture receives so much more attention than, say, the "collateral damage" that is an inevitable aspect of contemporary warfare. But the debate also involves what counts as "torture," as distinguished from "cruel, inhuman, and degrading" methods of interrogation or even "coercive but acceptable" methods. This article argues that we sometimes overemphasize the significance of particular acts — i.e., x either is or is not torture — as against the importance of the phenomenology of torture, which involves creating a structure of complete domination and, therefore, complete vulnerability. This is similar to the phoenomenology of slavery. Indeed, in this 150th year since the Supreme Court's decision in the Dred Scott case, it is important to contemplate the full meaning of Chief Justice Taney's declaration that blacks had "no rights" that whites were "bound to respect." Can a liberal political order ever carve out a set of persons — such as suspected terrorists — who indeed have "no rights" that the state is obligated to respect? If the answer is no, then what are the implications for the process by which the United States, presumably a liberal political order, conducts interrogations even of those suspected of being "the worst of the worst"?