History, Torture, and Due Process

The world seeks a legal system that will protect the rights of all human beings much more effectively than the nation state has done over the past two centuries. Although the liberal, democratic state has made great progress since the eighteenth century, there is not a single one that has not seriously violated the rights of its citizens and its non-citizens in the name of self-preservation during the past hundred years. The necessities and dangers of the moment have almost always provided governments with an excuse to infringe upon individual rights. The American war on terrorism has clearly demonstrated that political leaders, judges, jurists, and political commentators have stripped defendants of their rights of due process and subjected them to torture ¯ even if these rights are embedded in the Constitution or guaranteed by international treaties.  The United States Department of Justice and its Attorney General have continued to produce secret memos that reportedly defend “enhanced” interrogation techniques. In the United States, fear of unknown plots and dangers has been used as a tool of political persuasion.  Long before American politicians began to use fear as a weapon of control, Judith Shklar worried about government’s using “acute fear” to oppress their people. States have always and will always attempt to take away the rights of persons living within their boundaries. In this paper I shall discuss how the history of fear, due process, and torture might give pause to those who are convinced that extraordinary measures are necessary and efficacious to defend the nation state. In other words, historians, drawing on their knowledge of the past, must strive to make the potential consequences of the current infringements on rights widely known, for instance by writing for arenas that reach audiences beyond narrow scholarly circles.