There are few books as exhilarating as one by a comrade that is intellectually engaging and speaks to the current context. I was invited by 3rd i NY to a Conversation titled ‘Torturing Democracies: Past and Present’, where Jinee and I discussed her new book at Alwan for the Arts. The conversation came to life with the audience which included many of our comrades from the South Asia Solidarity Initiative (SASI) including Prachi. After that wonderful conversation, Prachi and I decided to delve further into the book and write a review. This was an exercise very different from what we normally engage with in SASI around our solidarity campaigns, but it was also a wonderful way to see another side of Jinee. That is the theoretically rich research of someone whom we relied on as a solid activist. I feel we should be doing more of reading, writing about and debating the work of our activist friends. A shorter version of this review has been published by Himal. Perhaps some of the themes in the book can be debated here with this longer review.
Review of Jinee Lokaneeta’s ‘Transnational Torture: Law, Violence, and State Power in the United States and India’, NYU Press, 2011.
By Prachi Patankar and Ahilan Kadirgamar
After the attacks of September 11th 2001, the US went to war in Afghanistan and eventually invaded Iraq. During this decade of war and occupation, the US kidnapped, detained and tortured prisoners, most of whom were Muslims held without charges. This even included some US citizens who were held as “enemy combatants.” Furthermore, the Military Commissions Act authorized by the Congress in 2006, stripped detainees of their right to habeas corpus. The CIA continues to maintain secret prison camps abroad and continues political spying on US citizens. Inside the US, many Muslims have been detained as “material witnesses” and others have been “entrapped” in what are called “home grown terrorism” cases. The policies enacted after Sept 11th in the form of a “war on terror” continue to operate in various forms after a decade of repression and despite the change of regime with the Obama Presidency.
This “war on terror” however, has not been limited to the US; it had a domino effect of draconian laws and measures throughout the world to nations large and small whether it is India or Sri Lanka. It is this escalation of repressive state power and its relationship to law and violence that is the context for Jinee Lokaneeta’s outstanding work titled, ‘Transnational Torture: Law, Violence, and State Power in the United States and India’. The book is grounded in legal analysis of numerous cases relating to torture, custodial deaths and disappearances in both the US and India. While such cases in recent years following the post Sept 11th push in the US and the 2001 attack on the parliament in India provides much substance for legal analysis, Lokaneeta traces these moves in the US and India through a longer legal history spanning the last century.
Theories of State, Torture and Law
The book, while engaging a broad range of philosophers and political theorists, is shaped by the insights and careful reading of the work of activist intellectuals, legal theorists and legal historians such as K. Balagopal, K.G. Kannabiran, Upendra Baxi and Ujjwal Singh. Lokaneeta’s strength is her ability to draw from the decades of courageous struggles and accumulated experiences of such actors toward arriving at some important insights about the modern state and its relationship to law and violence. Her respect and engagement with such committed activist intellectuals provides the foundation for her important project. Indeed, Lokaneeta’s own background as an activist and scholar first in India and then the US informs her commitment to the questions she addresses.
This work distinguishes itself in its approach and analysis from other works on torture. The book refutes the Enlightenment narrative that since the eighteenth century torture is in steady decline and demolishes the claim that torture is absent in liberal democracies. Furthermore, it exposes how liberal states have deflected systematic analysis of torture by blaming it on a few bad apples; an undisciplined law enforcement officer or a sadistic soldier. Indeed, not only liberal states, but even mainstream human rights actors believe that torture can be eliminated through reform of law enforcement.
Next, in the context of extraordinary laws over the last decade such as the PATRIOT Act in the US and POTA in India, some theorists claimed that it is the exception of these laws that led to the re-emergence of torture. However, Lokaneeta argues that torture is not exceptional but is integral to modern liberal democracies with a clear continuity and link between the norm and exception. She shows how both in the US and in India, the state constantly denies such excess violence through outright lying, sanitization of the language around methods of torture and sophisticated legal interpretations called hyper-legality. Lokaneeta’s insight – which should be worrying for all of us – is that torture is inherent to modern jurisprudence; attempts can be made to limit excess violence by the state, but it is there lurking within the law.
States, Histories, Non-State Forces and Wars
The question inevitably arises as to how states as different as the US, India or Sri Lanka, in terms of the scale of state infrastructures and their economies, and their varied histories deal with diverse contexts and problems. Indeed, the US as an imperialist power and self-appointed police of the world has different issues from India, with its rural and urban poor and armed conflicts in its periphery in Kashmir, the North East and in the “Red Belt” with the Maoists. On the other hand, how can one compare the history of India, which went through a few years of Emergency rule with the history of Sri Lanka, which has been under Emergency rule for more than half its post-colonial history? What is then the relation of law and violence to such states with their different histories?
Lokaneeta addresses the historical shifts and challenges that shape modern states. In the US, she traces this history through Supreme Court rulings that deal with racial mob attacks against Black men in custody in the 1930s, to debates on the death penalty to the torture memos under the Bush regime. In India, she relates the consequences of the failure of the Nehruvian development project, which by the sixties led to mass resistance and struggles, to the Indian State’s response with the Emergency regime of extraordinary measures and mass violence in the mid seventies. One can draw from Lokaneeta’s work to also explain how in a country like Sri Lanka with its two major insurrections by the JVP in the South and a protracted armed conflict over decades in the North and East; the scale of violence has been used by the state to justify Emergency rule and the Prevention of Terrorism Act over a much longer period of time.
While the different histories and contexts of these countries explain the different weight placed on extraordinary laws and levels of violence, they are also connected through a circulation of discourses. Indeed, some critical scholars have shown how the jurisprudence on emergency developed as forms of colonial rule and eventually morphed into emergency powers common to all modern states. There has also been the circulation of laws and discourses, from Supreme Court rulings, the extraordinary laws such as POTA and the PATRIOT Act, to the “war on terror”; India has borrowed these from the US and vice versa. Thus state practices and such discourses should not be seen in isolation, and here, one can clearly see how the language of the “war on terror” has become so prevalent in most South Asian states with SAARC itself emphasizing “terrorism” as a central issue in recent years.
This brings up the important question of how one understands the violence of non-state forces in relation to state violence. Lokaneeta addresses this question by referring to the work of a profound human rights activist: “According to Balagopal, the state needed to recognize that many of the armed movements—regardless of their ideology and strategy—represented politics, not ‘terror,’ and required a political solution rather than further repressive action.” Without this insight and without mass mobilization at the level of society, one will be forced to accept the state’s imperative to deal with non-state forces or any form of resistance with brute force and escalating a vicious cycle of violence.
Next, torture is perceived differently in these countries. While in many parts of South Asia, routine state violence which targets the subaltern classes is normalized in the public sphere as an unavoidable reality, mainstream discourse in the US denies the existence of such state violence even when oppressed communities of color experience such brutality on a regular basis. Many commentators in the liberal spectrum of the US declared that the extraordinary measures after Sept 11th are unprecedented, un-American and un-constitutional. “This is not what America is about,” was a constant refrain. The book not only shows how this is not the case historically, but through nuanced analysis of popular culture and TV shows it also exposes how torture in fact is not opposed by large sections of the public, and that legal discourse and popular culture reinforce each other on the controversial issue of torture.
Now, one question that remains is why many critics of the liberal paradigm also found the shift after Sept 11th to be unprecedented. The answer might be in part due to the urgency of the situation and the seriousness of the Bush regime’s crimes. Indeed, such open embrace of torture by central figures in the Bush regime is unprecedented. However, such aggressive policies by the Bush regime cannot be understood in isolation from its global project—an unending “war on terror” to consolidate US power around the world. Many of the Bush regime’s policies have been entrenched despite the change of regime. Indeed, even with the withdrawal of the US from Iraq, the Obama administration seems committed to the “war on terror” with the war in Afghanistan continuing and increasing drone attacks in Pakistan and other countries in the Middle East and Africa. In contrast to the experience after Vietnam, the American public is yet to fully reckon with the disasters and defeats in the recent wars in Iraq and Afghanistan. Without a clear and active reversal of the wide ranging policies that came with the “war on terror”, extraordinary laws and justifications of torture are perhaps becoming entrenched in an unprecedented manner.
Race, Class and the Marginalized
On September 22nd, 2011, Troy Davis, an African American man convicted of murdering an off-duty police officer more than 20 years ago, was executed with lethal injection. Troy Davis’ case lacked physical evidence linking him to the crime and a number of critical eyewitnesses who originally implicated him in the murder had recanted their testimonies. Despite strong voices against Davis’ execution, the state of Georgia went ahead with what many call Troy Davis’ “legal lynching.” Racism is at the heart of the death penalty in the US. Thus any understanding of torture and other forms of state violence must look at what role race, class, religion and ethnicity play in its eventual execution, whether it is the routine police brutality that Black and Latino youth face, torture facilitated by extraordinary laws of suspected “terrorists” or other measures that now sanction murder of Muslims through drone attacks.
Lokaneeta mentions the work of democracy rights activists in India who were conscious of the class factor in torture, that it is poor migrants and workers that face the brunt of police brutality. Such class politics is at the heart of the debate between civil liberties and democratic rights activists, where the former wish to strengthen democratic institutions and the latter focus on the right of the oppressed to change the system itself. Lokaneeta, while conscious of such class politics, sees the importance of an approach grounded in legal discourse. Her work is also a call to activists; to take liberal institutions and law seriously enough to understand their workings. At the same time, her analysis of the modern state and its relationship to law and violence also has implications for understanding the political pressures and possibilities facing contemporary societies.
This is where a question arises about contemporary states. While Lokaneeta grasps the important shift from colonial rule to new forms of rule with post-colonial states, is there also another significant shift with the emergence of neoliberalism in the 1970s? In other words, after the failure of the social development project in the Third World and the cuts to the welfare state in the West, has the role of the state shifted to weigh more on ensuring repressive order in the interest of capital? Furthermore, if in countries such as India and Sri Lanka, it is the economically marginalized and the ethnic minorities that face the brunt of state violence, does that not call for merging the class and national questions, just as in the US it would call for merging the class and race questions? It is here that works of political economy augmenting insights gained through analysis of legal discourse might be important for efforts and struggles to confront state violence.
Lokaneeta has produced a theoretically rich work developed through painstaking research. Her commitment to scholarship as much as to activism on the side of the oppressed has steered her away from easy answers and preoccupied her with the difficult question of modern liberal state’s relationship to law and violence. Those striving to understand the persistence of such state violence as well as those struggling to change state and society to rid it of such violence would greatly benefit from reading this exceptional work.