Liberal Democracies And The Torture Of Their Citizens

Author: Cynthia Banham
Publisher: Oxford, UK; Portland, OR: Hart Publishing, 2017. 251p.
Reviewer: John T. Parry | July 2017

In the post-9/11 conversations and debates about torture, many commentators have suggested a simple dichotomy: on one side are authoritarian states that too easily use torture to control their populations, while on the other side are liberal democracies that do not torture. Relying on this dichotomy, commentators easily have judged the United States guilty of acting like an authoritarian state when it should have been acting like other, more virtuous and human rights-respecting, liberal democracies.

Of course this dichotomy has attracted critics who have detailed the ways in which other liberal democracies have used torture and related forms of coercion in the pursuit of government interests. Still, the contemporary literature on torture generally assumes that liberal democracies oppose torture and that agreement on this issue transcends ordinary political debate. Cynthia Banham’s impressive and essential book, Liberal Democracies and the Torture of Their Citizens, complicates this framework. To be sure, the United States remains guilty of using torture and other forms of coercion on people it detained in the years after the 9/11 attacks. Chapter Four of Banham’s book provides a valuable and concise overview of this conduct and the ways that American political culture responded to it. Indeed, Banham’s straightforward, objective style ensures that the sordid details of this story retain their distressing impact more than a decade after the events.

But the significance of Liberal Democracies and the Torture of Their Citizens comes from its examination of the ways in which Australia, Canada, and the United Kingdom responded to the torture of their citizens by U.S. forces. As Banham stresses, the three countries “share a British heritage, are all members of the Commonwealth with common law legal systems and possess strong records of ratifying international human rights treaties” (5). Yet the three countries responded in quite different ways to the fact that some of their citizens were detained and tortured by the United States. Banham sets out to explain these different responses and, in so doing, to shed light on some of the difficulties that confront the effort to combat torture.

Banham begins her study with a review of the apparent contradictions between liberalism and torture and the more subtle contradictions within liberalism that sometimes enable torture. Chapter Two explains the ways in which liberal thought can bend to authoritarian goals of creating liberal citizens and demonizing those who do not conform to the liberal ideal. Confronted with an “Other” who threatens liberal values, some theorists (and far more politicians) have embraced the idea that torture can be permitted in exceptional circumstances, for the purpose of protecting the liberal state against its enemies. Most prominent in this debate are the metaphors of “dirty hands” and the “ticking time bomb,” both of which seek to justify the necessity—and for some writers, the legality—of using torture or other forms of violence against those who threaten the state.

Chapter Three turns from political theory to the details of human rights practice. After all, it is no secret that governments use violence and deliberately harm people, and it should be no surprise that leaders of liberal democracies would dress up that violence in self-justifying language. Banham conceptualizes the existence of international human rights, not as the fulfilment of a moral imperative, but instead as the conscious decision to create meaningful constraints on state violence, “an armoury against the potential exercise of excessive or arbitrary power” (21). Although there is no doubt that international human rights norms have an important positive impact, compliance with these norms varies from state to state. Banham distinguishes her project from other studies that explain human rights compliance in terms of differences among different kinds of political regimes: “I am concerned with differences in international human rights implementation among countries of similar regime type” (26).

Working within the category of liberal democracies, Banham asserts that differences in human rights compliance reflect not simply differences in governmental action but also, and more importantly, differences in the role played by civil society. Focusing on the interactions between government and civil society actors—“the legal profession, domestic and transnational human rights NGOs, religious-based organisations (especially Muslim community groups) [and] the media and family members” (27)—Banham seeks to analyze compliance “through the lens of the enabling and constraining factors that are particular to the domestic political and legal context.” She identifies “three types of factors: a state’s political culture, particularly in relation to rights; political and legal institutions; and political opportunities for pressuring governments on rights issues” (30-31).

The next three chapters analyze the interactions between governmental and civil society actors in Australia, Canada, and the United Kingdom in response to revelations that citizens of those countries were tortured by the United States. In Australia, for example, which had “pledged military backing to America on the day of the 9/11 attacks” (71), government officials responded tepidly to the news that two Australian citizens were tortured at Guantánamo Bay Naval Base. Nor was there much of an outcry in Parliament. Of the government institutions, only the judiciary showed much willingness to question the treatment of Mamdouh Habib and David Hicks. Civil society actors also were not able to accomplish much. According to Banham, Australian human rights NGOs were not well-developed, and their efforts focused more on repatriation of the two men than on their treatment. Australia lacks a bill of rights, and Banham argues that Australian rights culture has a utilitarian focus that pays relatively less attention to minority concerns, and she also posits that the country’s relative inexperience with terrorism meant that the public, and government actors, were more easily panicked.

But Banham also points out that differences between the two men generated corresponding differences in the willingness of civil society actors to mobilize on their behalf. Hicks’s family members and lawyers were able to portray him as a wayward young man who made a mistake but whose family reflected “mainstream Australia” (94). Habib, by contrast, was unpopular in the local Muslim community and, as an immigrant Muslim, could not easily gain empathy from the “mainstream.” Banham assembles numerous quotations from government and civil society actors to demonstrate that Habib was regarded as an Other, not as a true Australian. As she aptly observes, “The different public attitudes towards Hicks and Habib are a reminder that, after 9/11, not all citizens were necessarily considered equal” (98).

The United Kingdom was also a strong supporter of U.S. foreign policy, but that policy faced greater criticism in the U.K. than it did in Australia. In addition, more U.K. citizens were mistreated under U.S. auspices—a total of nine, compared to two each in Australia and Canada. Although British governments resisted serious inquiry into the treatment of the nine men, Parliament insisted on some accountability, and the courts became involved in a significant way. Banham also highlights the activism of British civil society and the media. Experience with terrorism made people less likely to panic after 9/11, and the long history of British misconduct in Northern Ireland helped foster a robust rights culture and NGO infrastructure that was available to advocate on behalf of the nine. Banham also rightly stresses the importance of the Human Rights Act, which gave a legal foundation for judicial involvement, as well as the U.K.’s status as a signatory to the European Convention on Human Rights and its submission to the jurisdiction of the European Court of Human Rights.

I wonder whether Banham could have said more about the extent to which the U.K.’s responses changed over time in response to the jurisprudence of the ECHR and the actions of the Council of Europe, both of which have had a great deal to say about U.S. torture policy and the involvement of European nations. That is to say, how much of the U.K.’s response to the torture of its citizens derives from being part of Europe, which is a significant—if obviously contested—distinction between it and the other two countries? (Note that the U.K.’s affiliation with the Council of Europe and the ECHR will not change as a result of Brexit, and the Human Rights Act will also remain unless it is replaced by new legislation, such as the Conservative government’s suggestion of a British Bill of Rights.)

Canada sits somewhere in the middle between Australia and the United Kingdom. The U.S.-Canada relationship, as Banham notes, is complicated. Although Canada supported aspects of the U.S. responses to 9/11, its support did not match the responses of Australia and the U.K. Five Canadian citizens were tortured as part of the war on terror, but Banham focuses on Maher Arar, tortured in Syria after extraordinary rendition by the United States, and Omar Khadr, tortured in U.S. detention. Canada’s response to the situation of the two men was inconsistent.

Canada is the only one of the three countries studied by Banham that has a constitutional bill of rights, but she points to equivocations in the 2002 case of Suresh v. Canada to suggest that judicial implementation of the right against torture is not robust. In any event, the judiciary had little opportunity to address the treatment of Arar or Khadr until relatively recently (the federal courts ultimately recognized that Canada was complicit in Khadr’s torture but gave him no remedy). For their part, government officials and Parliament showed little interest in assisting the two men, although the government ultimately ordered an investigation of Arar’s treatment in response to public pressure. As the previous sentence indicates, civil society played a significant role in Canada’s response to U.S. torture, although that response focused on Arar, not Khadr.

Notably, the divergence between activism on behalf of Arar and less enthusiastic support of Khadr was not based on racial or religious difference, as it was in Australia. Rather, Arar was easily seen as an innocent wrongly mistreated, his wife emerged as a compelling advocate on his behalf, and she generated strong public sympathy and received significant media and NGO support. By contrast, the Khadr family was known as “Canada’s first family of terrorism” (168), members of the family had been involved with al Qaeda and suggested support for the 9/11 attacks, and Khadr himself was accused of taking part in military action against the United States. Activism on his behalf took longer to coalesce and received a boost from the court opinions that confirmed his claims of mistreatment. Banham concludes that Canada has an “incomplete commitment to [the] absolute prohibition of torture” (194), with the consequence that inconsistent activism and government resistance can lead to very different results.

Banham’s grasp of the details of each country’s domestic political culture ensures a nuanced and convincing analysis. She demonstrates that human rights compliance in countries that perhaps too easily are thought of as obviously compliant is, in fact, complicated, fragile, and incomplete. Banham advances no easy answers, but she credibly asserts that “[t]he need for civil society to engage in political accountability on human rights arises because the traditional accountability mechanisms of government are often not enough to guarantee freedom from domination by the executive” (221). Her discussion of Australia, Canada, and the United Kingdom justifies her assertion that “civil society activism can have an important bearing on state responses to contentious international human rights issues” (40). Yet she also cautions, again based on her analysis, that “the willingness of civil society members to act as agents of accountability and organize against the executive government over human rights concerns, and their effectiveness when they do so, is not guaranteed” (221). She also draws on her analysis to identify some of the conditions—“a high level of rights awareness across different parts of the polity, and robust levers and political incentives”—that can “make activism easier” (40).

Banham’s careful analysis also suggests an agenda for further research. What conclusions would emerge from extending her study, particularly her focus on civil society, to other liberal democracies, particularly continental European countries? And, as with the United Kingdom, how much did the actions of those countries reflect national factors, and how much were they influenced by the Council of Europe and the ECHR? What about Israel, or India? One hopes that Banham or others will pursue these questions.

Liberal Democracies and the Torture of Their Citizens is thorough, well-researched, and presents its conclusions in a clear and even-handed fashion. Political actors are revealed—presumably to no one’s surprise—as willing to subordinate human rights concerns and the mistreatment of citizens to political or strategic goals. But that is hardly the central message of Banham’s important book. Her research also proves that the decisions of civil society groups and individuals play a meaningful and often critical role in human rights enforcement. In other words, Banham details some of the ways in which human rights depend on engaged political action, and she also makes plain that broad-based, non-parochial activism holds the greatest promise for a robust culture of human rights.

John T. Parry, Associate Dean of Faculty & Edward Brunet Professor of Law, Lewis & Clark Law School.