1. Introduction
This chapter studies norm contestations that led to norm clarification, and thus agreement on the norm frame and behavioral claim. Such norm clarification comes about when an actor’s proposed norm frame and claim are widely accepted, synthesized,Footnote 1 or rejected. Norm clarification renders norms more precise and thus increases social norm strength. This chapter analyzes under what conditions norm contestation culminates in norm clarification by conducting a structured, focused comparison of two cases in which the US contested well-established norms: While the US’s contestation of the right to self-defense and the prohibition of torture both happened against the backdrop of international terrorism, the Bush administration’s norm interpretation was accepted in the former case and rejected in the latter.
This variation in outcome increases our confidence that material power alone did not determine the outcome of norm contestation: The most powerful state’s preferred norm clarification did not always prevail. Furthermore, these episodes of contestation involved security issues, an area where realist scholars are particularly skeptical that (legal) norms matter.Footnote 2 Yet international law figured prominently in debates. In addition, the case study analysis indicates that the intent and identity of the proponent of norm change (here, the US), the presence or absence of shared perceptions of output legitimacy, and in-group support matter for the persistence of norm interpretations.
This chapter adopts a different approach to that applied in the other empirical chapters: I conduct a fine-grained analysis of the type of argumentation US decision-makers relied on in these norm disputes, and how important audiences reacted to them. The discourse analysis focuses on official statements, reported in the news, press releases, speeches, and political debates in IOs such as the UN. Studying what arguments norm addressees relied on most does not conclusively prove that this justificatory discourse caused a certain outcome. The arguments norm addressees present in public indicate what they deem important when deciding on a norm interpretation and what their audiences may base their judgment on. For example, norm addressees would not discuss the effectiveness of a norm interpretation in addressing a shared problem if they did not think that such output legitimation might secure the support of key audiences for a norm interpretation and would be an important consideration. In short, the argumentation around norm application constructs legitimacy discursively and gives insights into the dispute parties’ interpretation of norm meaning.Footnote 3 Unlike in the other case studies, the interpretations of norm addressees eventually converged here. Thus, the focus on discourse allows me to trace changes in argumentation and audience reactions over time, and how these discursive moves contributed to norm clarification.
In the following, I first discuss the observable implications of different kinds of argumentation and audience reactions. I then conduct a fine-grained discourse analysis of the US’s attempt to broaden the right to self-defense (norm clarification through acceptance) and the Bush administration’s contestation of the prohibition of torture (norm clarification through rejection). These case studies show the importance of legitimation and in-group reactions, and that the preferred interpretation of materially powerful states (in this case, the US) does not always prevail. I then discuss the implications of these norm disputes for norm strength. The last section concludes.
2. Pathways to Norm Clarification
I find that three social dynamics likely influence the outcome of norm contestation when there is disagreement over how to interpret and implement norms: argumentation, audience reactions, and delegation. I focus on analyzing the argumentation and the degree of social support for the US’s interpretation of the right to self-defense and of the prohibition of torture, and in this section, I discuss the observable implications.
2.1 Delegation
We do not see delegation in the dispute over the US’s interpretation of the right to self-defense in the context of international terrorism. In the debate over the US’s interpretation of the prohibition of torture, delegation contributed to the general pressure on the US to withdraw its interpretation in the later years of the debate. Agents such as UN Special Rapporteurs and the CATFootnote 4 treaty body, the Committee Against Torture, issued interpretations on torture allegations regarding the US. However, the dispute parties did not specifically delegate the task of analyzing the US’s conduct to UN experts. The UN experts have broader mandates and automatically engaged in the task.Footnote 5 The UN experts’ nonbinding findings came at a time when revelations of US practices by NGOs and the media, and public criticism in general, intensified.Footnote 6 Hence, while these agents contributed to the public pressure through their revelations of practices at Guantanamo and legal interpretations, it is difficult to isolate their influence from that of NGOs and the media. Because of this, I prioritize the analysis of audience reactions and argumentation in these episodes of contestation.
2.2 Argumentation
This chapter differs from other chapters in that I engage in a fine-grained analysis of argumentation. The arguments the dispute parties relied on indicate what justifications for their interpretations they considered most likely to secure the support of important audiences. In particular, the arguments that the US, as challenger of the preexisting consensus on torture and self-defense, relied on indicate the social expectations and concerns the US had to address.
I code the arguments that the dispute parties put forward in the analyzed debates over self-defense in response to terrorist attacks, and over the prohibition of torture, depending on the justifications brought forward. I differentiate between different kinds of legitimation of norm interpretations: identity-based legitimation (references to the speaker’s image, trustworthiness, credibility, or identity); questioning of the opponent’s (O’s) credibility; output legitimation (references to necessity, utility, or effectiveness); principle-based legitimation (emphasis of substantive commitment to a normative standard); precedent-based legitimation (reference to concrete prior cases or legal interpretations); legal argumentation (explanation of the meaning or applicability of a given legal norm or document); and process-based legitimation (references to the fairness of deliberations).Footnote 7
The Bush administration initially engaged in covert exceptionalism regarding the prohibition of torture but then shifted toward open reinterpretation attempts when its practices were revealed and criticism intensified. When it comes to the right to self-defense, the US’s legal discourse indicates that it pursued generally applicable norm change.
When generally applicable norm change is pursued, we would expect the proponent (here the US) to refer to output legitimacy when legitimating its preferred norm interpretation. As discussed in Chapter 2, reaching an understanding of output legitimacy requires less identification from other norm addressees with the proponent of the norm interpretation and thus is more likely to also appeal to out-group members.Footnote 8 Accordingly, if shared perceptions of output legitimacy can facilitate norm clarification, we would expect the debate to focus on whether the norm interpretation is beneficial, necessary, or effective in addressing a shared problem and thus justifies a collective long-term commitment.Footnote 9 Furthermore, we would expect norm addressees to consider whether an external event (such as a terror attack or a technological invention) has upset the prior consensus, and so needs a new solution. Most contestation scholars argue that exogenous shocks such as crisis situations like 9/11 reveal the contested and uncontested aspects of norms and provoke norm contestation.Footnote 10 The social expectation related to showing the output legitimacy of a norm frame and claim combination provides an explanation: Such exogenous shocks help to show that there is a shared problem needing an effective solution.
Generally applicable norm change is not the only strategy states may pursue. As discussed in Chapter 2, we also see covert exceptionalism, where norm addressees covertly pursue behavioral claims that are difficult to reconcile with prior norm interpretations but affirm their commitment to the generally agreed-on norm interpretation.Footnote 11 When there is a strong public expectation regarding consistently and faithfully interpreting the norm, even materially powerful states will struggle to gain acceptance for the implementation of behavioral claims that other norm addressees are likely to consider at odds with prevalent understandings of the norm frame. Hence, we would expect secrecy and denial when questioned.Footnote 12 When denying any wrongdoing, the norm challenger is likely to engage in identity-based legitimation where possible, referring to its credibility in relation to the norm, for example by pointing to the “cultural match”Footnote 13 between the contested norm and the identity or domestic legal culture of the norm challenger. Liberal states, for example, are considered more trustworthy interpreters of human rights than illiberal ones.
When denial is no longer an option because the exceptionalist norm interpretations have been uncovered and are being criticized, the actor may decide to absorb the social repercussions and material costs and continue to contest, or decide to give up the frame and/or claim because the social costs are too high. If contestation continues and the actor decides to openly reinterpret the norm, we would then also expect a shift from identity-based to output legitimation.
2.3 Audience Reactions
For norm clarification, widespread support for a norm frame and claim from in- and out-group members is necessary. Following Finnemore and Sikkink’s criterion for widespread acceptance of a norm, what matters is that this acceptance or rejection of a norm interpretation comes from a tipping point of at least one-third of states, including critical states without whose support the norm goal would be compromised.Footnote 14 As previously discussed, I consider the P5 as critical states in this study since they have decision-making power regarding security norms.
When a norm interpretation is contested, however, in-group dissent is particularly costly, as there are more social and material ties between the states that make disagreements more consequential.Footnote 15 We would therefore expect speakers to put effort into gaining in-group support for a norm interpretation. As discussed in Chapter 2, whether countries have shared values or history is an important indicator of group membership. Due to their shared values, I consider European states, Canada, Australia, New Zealand, Japan, and Israel as members of the US’s in-group. I pay particular attention to the reaction of European states to the US’s norm interpretations because of their shared history and close cooperation.
Table 6.1 provides an overview of the case study findings.
3. Comparing Situations of Norm Clarification: Contestation over the Right to Self-defense and the Prohibition of Torture in the Context of International Terrorism
The norms that were contested – the right to self-defense and the prohibition of torture – are widely recognized as internalized, hard law. Finnemore and Sikkink regard codification and widespread ratification as signs of widespread acceptance:Footnote 16 the UN Charter and CAT count 193 and 174 treaty parties, respectively.Footnote 17 The prohibition of the use of torture is a jus cogens norm and is widely considered one of the strongest taboos in international affairs.Footnote 18 Self-defense is also a well-established right, not only internationally but also in most legal and moral codes. The contestation of both norms is therefore unexpected, illustrating that the incompleteness of norms prevents internalization, but also that the international community’s strong acceptance of these well-established norms and the expectation that member states will abide by them makes norm change difficult. I will discuss the US’s contestation of these norms in turn.
3.1 Acceptance of Reinterpretation: The Right to Self-defense and International Terrorism
While the US’s interpretation of the torture prohibition in the context of terrorism was rejected, the US was more successful in gaining support for its broadening of the right to self-defense.
Article 51 of the UN Charter codifies the “inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.” The term “armed attack” has raised questions about how imminent an “armed attack” must be for a state to be permitted to engage in preemptive self-defense but also on what constitutes an “armed attack”: among other factors, whether it must be carried out by nation-states. This last aspect became debated with the rise of international terrorism. In the Nicaragua case, the ICJ found that an “armed attack” also includes “the sending by or on behalf of a State” of non-state actors to use force with similar gravity and scale as an armed attack by regular forces.Footnote 19 This indicates the need for active and significant state involvement for the right to self-defense to be triggered – a bar that was significantly lowered after 9/11.Footnote 20 Norm clarification through widespread acceptance of the US’s norm interpretation occurred.
On September 11, 2001, Al-Qaida terrorists hijacked four airplanes and crashed them into the World Trade Center, the Pentagon, and the Pennsylvania countryside. Nearly 3,000 people lost their lives and about 6,000 more were injured.Footnote 21 As a result, the US engaged in a “war on terror,” and against the Taliban regime in Afghanistan for willingly harboring Al-Qaida, referring to its right to self-defense in response to 9/11 and to deter future attacks.Footnote 22 The widespread consent to this reinterpretation of self-defense was not self-evident. Before 9/11, the same norm interpretation – that states should be allowed to use force in response to terrorist attacks by targeting states that had made themselves accomplices by willingly harboring the terrorist organizationsFootnote 23 – did not resonate sufficiently. Two examples are often cited in this context: the lack of support for the US’s invocation of self-defense (frame) to justify strikes against Libya in 1986 (claim) and against Afghanistan and Sudan in 1998 (claim). In the following, I trace how argumentation and audience reactions changed between 1986 and 2001.
On April 4, 1986, a bomb exploded in La Belle Discotheque in Berlin, killing three (including an American soldier) and wounding more than 150 others, including approximately 60 Americans. American officials noted clear indications of Libyan responsibility.Footnote 24 Ten days later, President Reagan ordered US fighter planes to bomb military and paramilitary targets, causing significant damage to Libyan military infrastructure. While domestically, lawmakers and the public were generally supportive,Footnote 25 internationally these events provoked significant contestation.
Following the terrorist attack, the debate mainly revolved around the factual grounds, namely around who planted the bomb and whether there was sufficient evidence to attribute the attack to Libya. President Reagan made any actions conditional on “what we learn”Footnote 26 and having “identification enough.”Footnote 27 This indicates the strength of the competing sovereignty norm and of the prerequisite of state involvement to trigger the right to self-defense: The US felt pressure to provide evidence of Libya’s involvement.
When justifying the claim that striking terrorist facilities and military assets was necessary in a broadcast address, Reagan cited what he called “direct,” “precise,” and “irrefutable” evidence: communication between Qaddafi and the Libyan People’s Bureau in East Berlin on planning and executing the attack. He used this evidence to back up his claim that missile strikes were necessary and framed them as an act of self-defense “fully consistent with Article 51 of the United Nations Charter.”Footnote 28 President Reagan and White House officials also pointed to the risk of future attacks to show that the danger from Gaddafi continued and a preemptive strike was necessary.Footnote 29 Reagan framed self-defense not only as a legal, but also a moral obligation, by saying that “[s]elf-defense is not only our right, it is our duty.”Footnote 30 He went on to link this duty to the output legitimacy of the preemptive strikes: namely that they would lead to reduced capacity for terrorism and a safer world.Footnote 31
According to an administration official, US diplomats went to all major European capitals to persuade them to support, or at least not criticize, the military response, in the lead-up to the preemptive strike.Footnote 32 Receiving at least one key partner’s (i.e., the UK’s) support was seen as vital,Footnote 33 suggesting that decision-makers consider in-group support for a norm frame and claim important. Yet European in-group members were in their majority reluctant to remain silent about their misgivings, which were primarily rooted in a different perception of the consequences of a military response to the bombing. In particular, Belgium, France, Spain, and Italy openly opposed the US strikes, citing worries about the “consequences,”Footnote 34 “a chain reaction of violence,”Footnote 35 disagreements “with this method of dealing with terrorism,”Footnote 36 and “a tangle of problems that certainly cannot be solved by a military blitz.”Footnote 37 UN Secretary-General Javier Perez de Cuellar agreed with this assessment and stated that “the resort to force is not an effective means of resolving disputes and will only lead to further violence.”Footnote 38 Thus, in-group opponents resorted to output legitimation as they questioned the applicability of self-defense, because they did not see using force as an effective way of preventing further attacks. While these concerns were linked to process-based legitimacy – the feeling that there was room for a political solution and diplomacyFootnote 39 – concerns about the missile strikes provoking more acts of terrorism, and thus output legitimation, figured most prominently in political statements.
Spain and France denied the use of their airspace for the military strikes, lengthening the flight route significantly, because of their disagreement with a military response to terrorism.Footnote 40 Securing support from other in-group members – the UK, Australia, Israel, and CanadaFootnote 41 – helped to mitigate the social repercussions and material costs. The use of UK airbases, for example, facilitated the missile strikes on Libyan targets. Thatcher justified British support with the norm frame of self-defense under Article 51 of the UN Charter, clear evidence of Libyan involvement, the limited nature of the strikes, and the failure of past diplomatic sanctions to deter the bombing.Footnote 42 Her argument that “[i]f one always refuses to take away risks because of the consequences, terrorist governments will win and one can only cringe before them,”Footnote 43 also shows that leaders face pressure to show the output legitimacy of their interpretations.
The out-group, namely the Non-Aligned Movement and the Soviet bloc, also rejected the claim in regard to military action, but based their opposition on different frames. A draft UNSC resolution that accused the US of armed aggression in violation of the UN Charter and pointed to peaceful means for dealing with terrorism was vetoed by the UK, the US, and France.Footnote 44 A nonbinding UNGA resolution that condemned the US military strikes in the same manner passed with the support of seventy-nine states on November 18, 1986.Footnote 45 In-group critics, such as France and Spain, were not supportive of this resolution because of problems with the wording, such as the lack of reference to the problem of international terrorism.Footnote 46 In the debates over the two resolutions, most out-group members openly condemned the US military strikes as illegal actions, labeling them an “armed aggression” by an imperialist, powerful state against a defenseless, weak state,Footnote 47 questioning the US’s real motives.
Several states based this claim on the rights to sovereignty, territorial integrity, and the prohibition of the use of force, which they saw as being violated.Footnote 48 China, for example, stated “we are also against violating the territory of a sovereign state on the ground of combating terrorism.”Footnote 49 The Soviet Union argued that “[i]ndividual criminals and individual terrorist cannot be unified with States and peoples. Individual incidents cannot be used in order to punish peoples and States, as was the case with Libya”Footnote 50 (principle-based legitimation). While not directly mentioning the right to self-defense, these statements show that important out-group members did not regard terrorism as a threat requiring a definition of self-defense that goes beyond armed attacks by states. Additionally, the Soviet Union also cited a perceived lack of output legitimacy: “aggression against Libya and several others can only create fertile soil for the growth of extremism and violence.”Footnote 51
In conclusion, the US failed to convince most others, including some critical states, that because of the threat of states harboring terrorist organizations, a broadening of self-defense was necessary and effective. Only the UK, Israel, South Africa, Australia, and Canada supported the US’s norm interpretation. While out-group members advanced different substantive frames – sovereignty and territorial integrity – to support their rejection of the claim, several in-group members questioned the output legitimacy of military strikes. Perhaps because of this overwhelmingly negative response, when Pan Am 103 was blown up a few years later by Libyan agents, Reagan’s successor George H. W. Bush did not respond with the use of force but with economic sanctions and prosecution.Footnote 52
However, we see a change in 1998, when on August 7, bombs exploded in US embassies in Nairobi and Dar es Salaam. Twelve Americans and over 250 others died, with many more heavily injured.Footnote 53 These attacks were attributed to Osama Bin Laden, who was already hiding in Afghanistan.Footnote 54 The US responded by bombing paramilitary training camps in Afghanistan and a Sudanese pharmaceutical plant suspected of being a chemical weapons facility. Contestation was more muted.
The US initially resorted to law enforcement and arrested several of Bin Laden’s followers in Albania and Pakistan.Footnote 55 The military strikes thirteen days later therefore took many by surprise.Footnote 56 The US’s claim that the military action was justified rested on the grounds that the Taliban regime and the Sudanese government had not responded to a request to shut these facilities down, which therefore continued to be a threat, triggering the Article 51 frame.Footnote 57 Evidence of Bin Laden’s involvement in the embassy bombings and “extensive ties to the government” of Sudan and Afghanistan were also cited.Footnote 58 The US resorted to legal argumentation and explicitly referred to its right to self-defense in letters to the UNSC and Congress as frames,Footnote 59 and, to a lesser extent, in the President’s address to the nation. Clinton relied heavily on output legitimation in his address, warning that “[t]he risks from inaction, to America and the world, would be far greater than action”Footnote 60 and arguing that “law enforcement and diplomatic tools are simply not enough, when our very national security is challenged.”Footnote 61 While Clinton’s interpretation of the right to self-defense was also met with disapproval, it mainly came from out-group members.
Foreign leaders were informed of the decision only after the air strikes.Footnote 62 Russian President Yeltsin was “outraged” and “denounced” this lack of consultation, saying that his “attitude is indeed negative as it would be to any act of terrorism, military interference, failure to solve a problem through talks.”Footnote 63 The Russian Foreign Ministry warned of a “dangerous precedent.”Footnote 64 The criticism therefore rested on a perceived lack of process-based legitimacy, but did not directly disagree with the self-defense frame. China initially was less critical,Footnote 65 but the state newspaper China Daily soon criticized the violation of other countries’ sovereignty and the US’s “tit-for-tat retaliation” as unjust and ineffective in the fight against terrorism.Footnote 66 The Chinese Vice-Premier Minister stated that he was “highly concerned and deeply disturbed” by the US airstrikes.Footnote 67 This indicates Chinese rejection of the US’s norm interpretation. China thus resorted to a mix of output- and principle-based legitimation. LAS issued the most formal complaint, claiming that the strikes on the pharmaceutical plant of its member country, Sudan, were illegal. In a statement sent to the Security Council, LAS called the act “a blatant violation of the sovereignty of a State member” and argued that such acts “instigate feelings of public outrage and encourage violence and counter-violence, thus endangering international peace and security.”Footnote 68 Thus, LAS considered output legitimation an important backing of its preferred norm frame that sovereignty trumps self-defense in the context of international terrorism. The UNSC only briefly discussed the matter, without taking any action.Footnote 69
Out-group members remained skeptical of the US’s attempt to adapt the “right to self-defense” to include military responses against states that actively support or willingly harbor the terrorist groups that have attacked. However, this time in-group members positioned themselves more uniformly in favor of the norm frame and claim. Traditional US in-group members – Australia, the UK, Germany, France, Spain, and Japan – were supportive or refrained from criticism. Clear evidence and the perceived risk of future attacks played an important role in their arguments.Footnote 70 The UK acknowledged that the US was acting in self-defense,Footnote 71 and British Prime Minister Tony Blair justified the UK’s support with the need to take successful measures in deterring terrorism.Footnote 72 While France only “takes note” of the US’s invocation of self-defense, French Prime Minister Lionel Jospin also stated that “determined and firm responses against terrorism”Footnote 73 were necessary. Italy was the only in-group member that continued to warn of the negative consequences of military strikes and the need for political solutions.Footnote 74
In conclusion, perceptions of (a lack of) effectiveness played an important role in the debate. While there was a greater willingness to accept that a reinterpretation of self-defense was necessary because of the threat of terrorism, a significant number of states still pointed to the competing norm of sovereignty (frame) and/or favored political solutions (claim). However, the rejection of the US’s frame and claim came mainly from out-group members, and we can see that this made upholding the contested norm interpretation less costly: Overflight of airspace was not blocked and diplomatic tensions with in-group members did not have to be overcome. However, the opposition from out-group members also indicates that a few years before 9/11, there was still a norm impasse over whether military action against states that actively support or willingly harbor terrorist groups who have already attacked falls under the right to self-defense. What was it then that led to the widespread agreement after 9/11 that the US could exercise its right to self-defense?
The statements of decision-makers indicate that a change in threat perceptions occurred, which upset the prior consensus, lowering the bar for showing state involvement in “armed attacks” to justify self-defense. There was widespread support for broadening the right to self-defense after September 11, when it became clear that terrorists can carry out large-scale attacks. The argumentation reflects that this change in the international community’s perception of the threat emanating from states harboring terrorists likely facilitated agreement on broadening the right to self-defense. 9/11 changed perceptions and assumptions about the world, diminishing the output legitimacy of a state-centric interpretation of the right to self-defense.
The North Atlantic Council stressed that the “commitment to collective self-defense embodied in the Washington Treaty was first entered into in circumstances very different from those that exist now, but it remains no less valid and no less essential today, in a world subject to the scourge of international terrorism.”Footnote 75 This statement indicates a recognition of major changes in global circumstances, requiring a reinterpretation of the right to self-defense to address the new threat of international terrorism effectively. This perception is also reflected in EU Commission President Prodi’s statement that this “barbaric attack … is a watershed event and life will never be quite the same again,”Footnote 76 and in German Foreign Minister Fischer’s remark that “[i]t’s a very emotional reaction because this is also a criminal and mass murderous attack on the open society, on the way we live.”Footnote 77 This sentiment was not only echoed by the US’s closest partners who saw it as an attack on their common, liberal values: Russian Foreign Minister Igor Ivanov, for instance, argued that “international terrorism has caused a blatant challenge to all civilized humanity, to all civilized world.” When asked about future American military action, Ivanov responded “[a]ll means must be used in the fight against terrorism, beginning from political and legal means and including, when and if necessary, use of force.”Footnote 78
Note that the US did not use force right away and made efforts to provide evidence of the Taliban regime’s willingness to harbor Al-Qaida and Bin Laden. The Bush administration negotiated with the Taliban and made a series of demands such as to close Al-Qaida camps in Afghanistan and to extradite Bin Laden.Footnote 79 The US then used these diplomatic efforts and the unwillingness of the Taliban to cooperate and to stop harboring Al-Qaida as justification for using force in self-defense to prevent and deter further attacks.Footnote 80
The US’s in-group approved the norm frame of self-defense against states who willingly harbor terrorists and the claim regarding intervening in Afghanistan. The UK directly participated in the intervention. NATO and the Organization of American States expressed their support for the US’s interpretation of self-defense and pledged to provide assistance.Footnote 81 For the first time in its history, NATO invoked Article 5 on collective self-defense. Approval also came from traditionally more distant corners: Russia, China, and several Arab states signaled their support.Footnote 82 China, for example, did not explicitly disagree with the self-defense frame and offered lukewarm support for the claim regarding using force against the Taliban regime: “China opposes terrorism of any form, hoping that relevant military strikes on terrorism should be targeted at specific objectives, so as to avoid hurting innocent civilians.”Footnote 83 Those countries that may not have agreed with the US’s interpretation and actions “pointedly refrained from condemning it.”Footnote 84 Only Iraq, Iran, Sudan, Malaysia, and Cuba openly opposed the military action, with some calling it “an act of aggression” and “domination and expansionism,” and others pointing to negative consequences of the use of force, such as an increase in terrorism.Footnote 85 Overall, however, the acceptance of the US’s self-defense frame and claim regarding using force was widespread. References to “world opinion”Footnote 86 and “international cooperation”Footnote 87 were common in Bush’s and Blair’s justification of the Afghanistan intervention, and even Russian President Vladimir Putin praised the use of force, saying that terrorists “did not expect such a unity of humanity before a common enemy,”Footnote 88 again indicating a change in perceptions of output legitimacy. Legal scholars agree that because of this widespread (open and tacit) support for the US’s frame and claim, norm clarification occurred.Footnote 89 In the words of Michael Byers:
As a result of the legal strategies adopted by the US, coupled with the already contested character of the rule and a heightened concern about terrorism world-wide, the right of self-defence now includes military responses against States which actively support or willingly harbor terrorist groups who have already attacked the responding State.Footnote 90
In this context, it is worth noting that the UNSC passed two resolutions following 9/11 that did not explicitly authorize the use of force but stressed the individual and collective right to self-defense.Footnote 91 After a UNSC meeting on the US and UK letters, which justified military action against Afghanistan on the basis of a broadened right to self-defense, the president of the UNSC stated that the UNSC’s unanimity of support from the prior resolutions “is absolutely maintained.”Footnote 92 Some argue that this was a deliberate decision by the US: The norm clarification through widespread support for the US’s norm interpretation without an explicit UNSC resolution implies that in similar situations in the future Security Council authorization may also not be necessary.Footnote 93
Securing acceptance for this norm interpretation did not only have the long-term advantage of cementing the US’s preferred interpretation of the right to self-defense in the context of terrorism, it also had tangible short-term benefits. From intelligence to air transit and troop contributions, the logistical support provided by in- and out-group members, ranging from Germany to Uzbekistan and Russia, made the intervention in Afghanistan less costly.Footnote 94
This is not to say that there was not also some disagreement. The US wrote in the letter to the Security Council that “further actions with respect to other organizations and other states”Footnote 95 may be necessary in self-defense. This statement proved controversial, and there was a widespread rejection of the right to self-defense allowing for a wider war on terror.Footnote 96 There were fears that the US would extend military action to Iraq. Even the UK, which also relied on the self-defense frame to authorize its intervention in Afghanistan, rejected an extension of this authorization beyond Afghanistan.Footnote 97 Thus, while this episode of norm contestation reduced the penumbra of doubt around the self-defense norm, it did not eliminate it entirely. As briefly discussed in the section on the implications for norm strength, subsequent applications of the right to self-defense in response to international terrorism also indicate this.
3.2 Rejection of Reinterpretation: The Prohibition of Torture and International Terrorism
The US openly and proactively contested the right to self-defense, indicating that it desired a universal, generally applicable change in the norm. By contrast, the US’s contestation of the prohibition of torture was mainly covert from 2001 to 2003. Revelations of US practices and legal memos, primarily between 2004 and 2005, which others criticized as violating the prohibition of torture, forced the Bush administration to justify itself.Footnote 98 The initial secrecy of the Bush administration indicates that the US did not seek to achieve a universal change of the prohibition of torture, but rather to maintain exceptionalist behavior that was at odds with the normative frame. The debate that ensued revolved around what constitutes lawful interrogation tactics of terror suspects. It involved several norms, but at its heart was the prohibition of torture.
The prohibition of torture is a strong prohibition. It is enshrined in twenty-eight human rights instruments with high ratification rates, and a part of the common Article 3 of all four Geneva Conventions of 1949, which has attained the status of generally applicable customary law. The prohibition of torture is non-derogable, even in times of war or crisis, and is absolute.Footnote 99 It has attained the status of jus cogens, rendering any contradictory rules or treaties null and void.Footnote 100 The torture prohibition can be classified as an internalized, “taken-for-granted”Footnote 101 norm, making its contestation unexpected. Article 1 CAT defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining… information…” and inflicted by or with the knowledge of a public official. Furthermore, this prohibition is also enshrined in the US’s domestic legal code.Footnote 102
Some scholars argue that US practices after 9/11 caused a reverse norm cascade and significantly delegitimized the norm domestically.Footnote 103 McKeown speaks of “norm death.”Footnote 104 Scholars also voiced fears that the US’s domestic contestation would undermine the international status of the prohibition of torture,Footnote 105 with some hoping that the reactions of other, liberal, states in Europe would be “sufficient to uphold the regime absent the hegemon.”Footnote 106 Keating shows, based on a fine-grained analysis of the arguments exchanged in the debate, that there is little evidence that the prohibition of torture was reinterpreted in a way that delegitimized the international norm due to the widespread criticism of the Bush administration’s interpretations.Footnote 107 I agree with his finding that the US’s reinterpretation attempt was rejected. I base the case study analysis on Keating’s dataset of newspaper and television coverage. I added official documents such as legal memoranda and press briefings and coded the reported statements to identify the frames and claims and how officials legitimated them.Footnote 108
As briefly discussed in Chapter 1, the interpretations of states can vary in precision. At the vague end of the spectrum are statements, where the frames and claims are difficult to distinguish or hidden. We see such statements here, particularly in the early years. President George W. Bush and senior officials often relied on statements such as “The United States does not torture. It’s against our laws, and it’s against our values.”Footnote 109 This norm interpretation is very vague. It lacks specificity regarding the claim: George W. Bush does not provide any detail as to what treatment of detainees does not amount to torture. It also lacks specificity regarding the norm frame: “does not torture” seems to refer to the prohibition of torture without explaining which “laws” are meant or how their content is interpreted. In other case studies in this book, norm addressees provided clearer interpretations, and this made it easier to analyze disagreements over norm meaning, and their effect on norm strength. These abstract statements, by contrast, are merely general statements of a commitment to the anti-torture norm, without much detail on how the norm is applied to the concrete situation.
However, the vagueness of the Bush administration’s statements is noteworthy because it can be seen as a sign of covert exceptionalism: namely, that the US engaged in behavior that would widely be seen as difficult to reconcile with prior norm interpretations while affirming commitment to the generally agreed-on norm interpretation. The goal was, therefore, likely to be to hide exceptionalist behavior, rather than to change the generally applicable norm.Footnote 110 This has also been referred to as decoupling,Footnote 111 denial,Footnote 112 or behavioral contestation.Footnote 113 Schmidt and Sikkink refer to covert validity contestation, when applying Deitelhoff’s and Zimmermann’s framework to the Bush administration’s contestation of the torture prohibition.Footnote 114 As explained in the Introduction and chapter 1, I do not share Deitelhoff and Zimmermann and collaborators’ approach to analyze whether contestation revolves around a predetermined norm core (i.e., validity contestation). Among other reasons, I do not consider it as consequential for norm strength. I thus prefer the term covert exceptionalism. The aim of the following discourse analysis is to show that this covert exceptionalism affected argumentation: We see vaguer and more abstract norm interpretations, and, in comparison to the norm dispute over self-defense in the context of international terrorism, the discourse revolves less around output legitimacy and more around the trustworthiness of the US. As the discrepancy between the Bush administration’s words and deeds became more apparent over time, we see a change in the justificatory discourse toward more open reinterpretation attempts and output legitimation.
In addition, the analysis distinguishes between the reactions of different audiences to the US’s interpretations of the torture prohibition in the context of international terrorism, and this shows that criticism from in-group members and domestic audiences can render norm interpretations unsustainable.
Another particularity of this case is that the contestation of the prohibition of torture consisted of several sub-debates. Leaked domestic legal opinions and accounts of interrogation techniques under the Bush administration provoked debates on the following. Firstly, on the definition of the prohibition of torture. Legal papers – in particular the Bybee memorandum – provoked debate on what constitutes torture: whether torture requires intent, and what amounts to “severe pain.”Footnote 115 Secondly, the US claimed that the laws of war rather than CAT apply in times of war as lex specialis,Footnote 116 and then proceeded to frame terrorist suspect prisoners as “unlawful enemy combatants” not entitled to the protection of the Geneva Conventions, while nevertheless claiming to abide by the Conventions and not to engage in torture. Thirdly, the Central Intelligence Agency (CIA) resorted to interrogating terrorist suspects in third states with laxer laws, in so-called black sites and Guantanamo, to escape domestic legal obligations. Such extraordinary rendition is prohibited under Article 3 CAT, which provides that an individual shall not be expelled, returned, or extradited to countries, “where there are substantial grounds for believing that he would be in danger of being subject to torture.”Footnote 117 Lastly, even if the US’s harsh interrogation techniques did not amount to torture, they could still be prohibited as “cruel, inhuman or degrading” (CID) treatment, but the Bush administration tried to sidestep this debate by implying that anything other than torture was lawful.Footnote 118 While leaked domestic legal opinions are explicit about these legal understandings, the Bush administration largely denied them in public, contributing to the vague discourse. Eventually, the US acknowledged and rescinded most of these legal positions and practices.
Because all of these debates revolve around the prohibition of torture, are somewhat linked, and happened at the same time, I decided to group these debates together. This decision comes at the expense of being able to evaluate in greater detail how these disputes have affected the meaning and strength of specific norms (e.g., of Article 3 CAT) in the torture prohibition norm bundle. However, it allows me to identify general patterns in the discourse, for example the presence of covert exceptionalism and the importance of identity-based legitimation and in-group support. Others might find the distinction between norm frames and claims helpful when studying the effect of contestation on specific norms in the torture prohibition norm bundle.
As the following analysis shows, the debate can be divided into three phases. From 2001 to 2003, the US was able to mostly keep its contestation under wraps; from 2004 to 2005, most of the US’s practices and legal opinions were uncovered and resistance started to form; from 2006 to 2008, there were no new revelations, but there was more pressure and more and more open acknowledgment of the Bush administration’s practices.Footnote 119
When the norm is as well-established as the torture prohibition, and there are strong social expectations regarding complying with it, we would expect secrecy and denial for behavior that might be questioned, to avoid reputational costs. This is what we see at the beginning: As the Bush administration would openly admit in later years, the US covertly used waterboarding – historically considered to be a behavioral claim at odds with the torture prohibition frameFootnote 120 – between 2002 and 2003. Similarly, the US’s discursive contestation of the torture prohibition largely remained below the radar between 2001 and 2003. A noteworthy exception is that in 2002 pictures of masked, shackled, and blindfolded prisoners in transit to Guantanamo led to allegations of mistreatment and torture.Footnote 121 Secretary of Defense Donald Rumsfeld’s remarks that while the US “for the most part” complied with the Geneva Conventions, it did not have to fully comply because the detainees were “unlawful combatants” without “any rights under the Geneva Convention” fueled contestation.Footnote 122 NGOs rejected this interpretation.Footnote 123 The in-group members who spoke out – Germany, the Netherlands, and the UK – only rejected the norm frame, insisting on prisoner-of-war status.Footnote 124 In-group members primarily justified their agreement on the claim of lawful treatment with the US’s liberal identity and their belief in American assurances.Footnote 125 As a result, the US Department of Defense assured full compliance with the guidelines of the Geneva Conventions, but without explicitly revoking the “unlawful combatant” frame.Footnote 126 Notably, the pictures from Guantanamo caused more debate abroad than in the US, and President Bush did not comment on the matter.Footnote 127
When later, in 2002 and 2003, reports of prisoner deaths and mistreatment surfaced, criticism mainly came from NGOs and the media. The US primarily answered this criticism with assurances of its belief in (inter)national law, and references to the just character of the American legal system and the US’s image as a liberal, rights-respecting state.Footnote 128 While some out-group members accused the US of hypocrisy, this was not very prevalent, and in-group members’ reactions were muted and generally supportive of the US’s abstract claim of law-compliance.Footnote 129
The vague “no torture” frame and the denials of engaging in prohibited behavioral claims indicate that the US did not seek to openly reinterpret the torture prohibition. In addition, the US was largely able to keep its most controversial norm frames and behavioral claims secret, as subsequent revelations would show, also pointing to covert exceptionalism. This covert exceptionalism was backed up by identity-based legitimation. In-group members accepted and reiterated the US’s identity-based legitimation and domestic debate was muted, keeping social repercussions at bay. The “cultural match”Footnote 130 between the contested norm and the US’s liberal identity likely made the identity-based legitimation persuasive. With regard to the treatment of prisoners in Guantanamo, the widespread agreement or silence regarding the US’s vague claim that its unspecified practices were legal implies that the reputational costs for continuing to treat prisoners in line with its preferences were minimal. However, the frame disagreement, particularly the US’s failure to explicitly affirm the applicability of the Geneva Conventions and combatant status, points to norm neglect.
Civil society, investigative journalism, and internal leaks revealed most US practices and legal opinions between 2004 and 2005, prompting criticism. In May 2004, footage of serious sexual and physical mistreatment of prisoners at Abu Ghraib surfaced. The US and UK apologized for these acts, but painted Abu Ghraib as an isolated instance of abuse, arguing that this treatment “does not reflect the nature of the American people”Footnote 131 and that “[y]ou shouldn’t judge the actions of the coalition as a whole on the basis of the actions of a few”Footnote 132 (identity-based legitimation). Abu Ghraib was a well-known torture chamber under Saddam Hussein, and its closure had become Bush’s main justification for the Iraq intervention when WMD were not found.Footnote 133 Hence, the revelations were damaging for the US and the UK. A leaked report from the International Committee of the Red Cross (ICRC) and an Amnesty International report indicated that prisoner abuse went beyond Abu Ghraib and a few military service members and that high-level decision-makers were aware of the mistreatment.Footnote 134 Domestic doubts about the credibility of the Bush administration’s implementation of the torture prohibition were sowed.Footnote 135 Internationally, outrage over the graphic pictures of prisoner abuse in Abu Ghraib was strong, particularly in the Arab world,Footnote 136 and out-group members accused the US of double standards.Footnote 137 However, in-group members such as Spain and Germany expressed trust in the US’s democratic system and praised the investigations (identity-based legitimation),Footnote 138 reducing social repercussions.
In June 2004, internal memoranda on the treatment of prisoners were leaked, later dubbed “torture memoranda.” The Bybee memorandum sought to lower the threshold for “severe pain” in the torture definition in Article 1 CAT and domestic law.Footnote 139 Because of intense criticism, soon after the leak, the Justice Department felt pressure to disavow and rescind the memo, arguing that it was overbroad, irrelevant, and unnecessary since administration officials had never asked for the legal authority to torture detainees.Footnote 140 The withdrawal of the memo clarified that the threshold for “severe pain” is below “death or organ failure” and “months or years of mental suffering.”Footnote 141 John Yoo’s leaked memorandum, which concluded that the Geneva Conventions do not apply to Al-Qaeda and Taliban detainees in Afghanistan, also attracted criticism.Footnote 142 Bush administration officials again sought to quell the debate with denial that the memos had been implemented.Footnote 143
In the remainder of 2004 and 2005, journalists, NGOs, and IOs revealed US practices that sowed domestic and international doubts about the US’s denial of prisoner abuse. For instance, memos based on an ICRC report that reported psychological and physical abuse in Guantanamo – ranging from exposure to prolonged cold and noise, to beatings – and which the ICRC called “tantamount to torture,” were leaked to New York Times.Footnote 144 Furthermore, media reports of the transportation of terror suspects to prisons in third countries with lower standards and harsh interrogation tactics – so-called black sites operated by the CIA – caused significant debate toward the end of 2005.Footnote 145 The airspace of multiple countries had to be crossed to transport the prisoners, and reports of such secret prisons in Eastern Europe surfaced, which stirred domestic debate in Europe and led to domestic investigations.Footnote 146 These domestic pressures led in-group members to deny complicity in granting overflight rights, landing rights, or the operation of secret prisons,Footnote 147 and led the EU to ask the US for explanations, particularly on the alleged operation of black sites in Eastern Europe.Footnote 148 Reportedly, the US hurriedly closed down the two black sites in Eastern Europe.Footnote 149 This is a further indication of the US’s goal of covert exceptionalism and of the importance of in-group pressure, as the US stopped implementing a behavioral claim that was perceived as not conforming to the torture prohibition. However, it also implies that the US had hitherto enjoyed tacit support for the operation of secret prisons from in-group members, as it is hard to believe that thousands of CIA overflights could have gone unnoticed. Later evidence has confirmed as much.Footnote 150 It is therefore noteworthy that civil society and domestic public pressure, for example in European countries, led the in-group to publicly voice concerns.
In short, the revelations led to domestic debate and required public justifications. The US addressed European worries by sending Secretary of State Condoleezza Rice to Europe and by making assurances that the US applied the same norm interpretation: for instance, by publicly affirming that CAT and the CID treatment prohibition extends to “US personnel wherever they are.”Footnote 151 Doubts on the US’s trustworthiness had increased by this point, which led Rice to clarify that US personnel meant all American interrogators.Footnote 152 A dinner with the foreign ministers of NATO countries led to statements of support for the US’s interpretation from in-group countries: They believed that, if secret prisons existed, the US had acted within the boundaries of international law.Footnote 153 Tellingly, however, the German foreign minister said in his statement of support that Rice “has reiterated that in the US international obligations are not interpreted differently than in Europe.”Footnote 154
What is more, while Bush, Rice, and other senior officials repeatedly stressed the US’s identity as a “nation of laws,”Footnote 155 the justificatory discourse was also ripe with references to the need for protection from terrorist attacksFootnote 156 and to the importance of aggressive tactics, intelligence, and secrecy to achieve this goal.Footnote 157 The increase in such output legitimation is notable during this period. While references to the terrorist threat and the need for protection were not explicitly cited as a reason to abuse prisoners, their mention did remind the audience of considerations other than the protection of human rights. Next to in-group pressures, domestic pressures intensified because of the allegations of torture and mistreatment. Republican Senator John McCain pushed for an amendment to the Military Appropriations Act to restrict interrogation techniques of all Department of Defense personnel to the Army Field Manual, and to prohibit torture and CID treatment without geographical limitation. He resorted to a mix of principled and output legitimation.Footnote 158 While the White House initially threatened to veto the bill, citing a need for flexibility in interrogating prisoners,Footnote 159 the intense debate over the US’s behavioral claims in December 2005 led Bush to agree to the amendment “to make it clear to the world that this government does not torture… whether it be here at home or abroad.”Footnote 160
Notably, between 2004 and 2005, beyond journalists, NGOs, and IOs, out-group members with poor human rights records were most critical of the US, accusing it of hypocrisy regarding torture.Footnote 161 However, the governments of European countries were still generally supportive (both covertly and overtly) of the US’s mostly abstract denials of torture and stated commitment to the torture prohibition.Footnote 162 This in-group support lowered social and material costs, and sustained what might be best described as a norm impasse over the Bush administration’s vague assurances regarding complying with the torture prohibition.
At the end of 2005, it seemed as if Bush would accept the McCain amendment. However, in early 2006 Bush issued a signing statement that he would interpret the amendment with the goal “of protecting the American people from further terrorist attacks.”Footnote 163 While signing statements are not legally binding, this can be seen as an effort to influence judicial interpretation and thereby to introduce a national security exemption to the torture prohibition frame.Footnote 164 This was met with domestic criticism,Footnote 165 and marked a shift from covert exceptionalism to much more open reinterpretation attempts. Between 2006 and 2008, inquiries from IOs and NGOs, such as the Committee Against Torture, concluded that the US’s now-revealed implementation of behavioral claims such as waterboarding,Footnote 166 extraordinary rendition to black sites,Footnote 167 and short-shacklingFootnote 168 of detainees was prohibited by individual norm frames of the CAT.Footnote 169 The Committee Against Torture also claimed that Guantanamo should be closed, framing the detention facility as in violation of Articles 2, 3, and 16 of CAT.Footnote 170 The director of Human Rights Watch called the Committee Against Torture’s conclusions “a complete repudiation of virtually every legal theory that the Bush administration had offered for its controversial detention and interrogation policies.”Footnote 171 The Committee Against Torture’s rejections of US norm interpretations were not binding, but they had an effect on the debate: Senior Bush administration officials addressed them and sought to play them down. They questioned the factual grounds,Footnote 172 tried to present the treatment of prisoners in a positive light, accused the UN experts of selectivity and misinterpretation,Footnote 173 and reminded the world of the dangerous terrorists held in Guantanamo.Footnote 174 This provides further support for the insight of this book that when agents are involved in norm disputes, the argumentation focuses on their credibility and effectiveness. US officials also disagreed with the Committee Against Torture on the general norm frame, arguing that CAT does not apply in situations of armed conflict.Footnote 175 However, these arguments failed to persuade other states: Out-group members such as China and Russia continued to point to the US’s double standards, while in-group members criticized the US much more openly.Footnote 176 The UK, Germany, and other EU leaders also demanded the closure of Guantanamo and asked Bush not to sacrifice human rights in the fight against terrorism (principle-based legitimation).Footnote 177
Second, while continuing to deny torture, George W. Bush (Reference Bush2006) started to portray an “alternative set of procedures” – later dubbed enhanced interrogation techniques – as effective in combating terrorism. US authorities acknowledged using waterboarding between 2002 and 2003. They said that “the programs have been reviewed, and the Department of Justice has determined them to be legal,”Footnote 178 and that waterboarding was used because further terrorist attacks seemed imminent then.Footnote 179 Waterboarding is a behavioral claim that is widely considered to fall under the torture prohibition frame.Footnote 180 Thus Bush administration officials’ statements imply that the torture prohibition excludes the behavioral claim of waterboarding and indicate a shift toward openly reinterpreting the torture prohibition in the context of terrorism. The change in approach – from covert exceptionalism to more open reinterpretation – went hand in hand with a change in argumentation. References to output legitimacy became more prevalent than identity-based legitimation, as I will show in greater detail below. Legitimation based on beneficial outputs, such as terror prevention, requires less shared values and so may facilitate agreement from both in- and out-groups, as discussed in Chapter 2.
This legitimation strategy was unsuccessful. Critical actors whose support was necessary favored a narrower interpretation. Domestically, both US presidential candidates in 2008 condemned waterboarding and affirmed their belief in the prohibition of torture,Footnote 181 and Congress passed a bill that sought to stop enhanced interrogations and to bind all American interrogators to the techniques authorized in the Army Field Manual, which prohibits physical force.Footnote 182 Bush vetoed the bill, pointing to the “proven track record of keeping America safe” and claiming that he had “no higher responsibility than stopping terrorist attacks.”Footnote 183 In-group opposition further intensified: Spain stopped extraditions; Dutch soldiers were instructed not to hand over Afghan captives to the US because of fears of abuseFootnote 184; and a high-level British parliamentary committee criticized CIA black sites and prisoner mistreatment.Footnote 185 A senior British intelligence official told the parliamentary committee that use of torture “never crossed my mind” because “we are talking about the Americans, our closest ally. This now, with hindsight, may look naïve, but all I can say is that is what we thought at the time.”Footnote 186 This statement supports the conclusion that in-group members initially found the identity-based legitimation strategy persuasive but that the revelations and reinterpretation attempts damaged the US’s image.
The social repercussions of the Bush administration’s reinterpretations did not go unnoticed. One of President Obama’s first acts in office was to issue an executive order on interrogations, which repudiated legal opinions on torture issued during the Bush administration and stopped most contested interpretations and practices. The executive order placed all terror suspects under the protection of the Geneva Conventions, ordered the closing of CIA black sites, granted the ICRC access to all detainees, bound all interrogators to the Army Field Manual and international conventions, and stipulated the goal of closing Guantanamo.Footnote 187 The Bush administration’s interpretations were thus eventually rejected, which clarified the prohibition of torture. As McCain’s opposition to the Bush administration’s interrogation techniques shows, he would have likely done the same if elected. The rejection of the Bush administration’s interpretations generated norm clarification.
The rejection of the Bush administration’s frames and claims illustrates that the international and domestic expectation to adhere to the prohibition of torture and of CID treatment was strong. At the same time, this episode of norm contestation also shows that a mix of identity-based and output legitimation resonates with important audiences and allows proponents of different interpretations to uphold them for a long time.
Figures 6.1–6.3 illustrate what kind of strategies the US and in- and out-group members engaged in when trying to legitimate their norm interpretations. Figure 6.1 shows that the Bush administration mainly resorted to identity-based and output legitimation, and is based on an analysis of official statements from President George W. Bush, and senior administration and White House officials. I differentiated between identity-based, output, or mixed (both identity-based and output) legitimation.Footnote 188 We see a shift toward a mixed legitimation strategy, with output legitimation becoming more prevalent over time. This shift indicates that references to the US’s identity alone were not considered sufficiently persuasive anymore when more and more of the Bush administration’s practices, or behavioral claims, were revealed. While continuing to maintain that “we don’t torture”Footnote 189 or “America doesn’t torture,”Footnote 190 George W. Bush and White House spokespersons started to emphasize the dangerous nature of terrorists,Footnote 191 the need for covert programs,Footnote 192 and the need for protection from terrorist attacks.Footnote 193
Figure 6.1 Bush and White House argumentation.
Figure 6.2 In-group members’ support for US interpretations.Footnote 194
Figure 6.3 Rejection of US interpretations.Footnote 196
In turn, in-group members who supported the US’s frame and/or claim relied mostly on identity-based legitimation (highlighting their trust in US democracy and assurances), followed by output legitimation that highlighted the terrorist threat and other considerations.
Out-group members were not as supportive. Out-group members mainly rejected the US’s norm interpretation by pointing to the US’s double standards and cited the torture allegations as reason not to trust the US’s judgment on their domestic human rights situation,Footnote 195 as also reflected in Figure 6.3. This shows that the US lost credibility and the ability to criticize the human rights practices of other countries because of its contestation. On the other hand, in-group members mainly resorted to legal argumentation and principle-based legitimation when showing their opposition.
4. Implications for Norm Strength
Both the prohibition of torture and the right to self-defense were relatively clear and settled norms prior to the US’s contestation: The prohibition of torture was considered absolute and the right to self-defense was considered to require significant state involvement in armed attacks to be triggered. While the US’s contestation eventually led to norm clarification, the norm disputes thus weakened the contested norms while they were ongoing.
With regard to the prohibition of torture, on the one hand, the Bush administration’s initial covert exceptionalism indicates the social strength of the norm: The US’s perception that domestic and international audiences expect consistency and adherence likely led to the clandestine implementation of behavioral claims that were at odds with the prior consensus. On the other hand, the Bush administration’s secrecy, denials, and vague reinterpretation attempts temporarily increased uncertainty over norm meaning, particularly because not all norm addressees were equally critical of the Bush administration’s norm interpretations. The resulting norm neglect and norm impasse that were seen prior to the widespread rejection of the US’s norm interpretations reduced precision and thus social norm strength.
Contestation temporarily also negatively affected relative norm strength. Recall that relative norm strength describes the breadth of a norm (i.e., how many situations its scope covers) and its depth (i.e., how widely it is accepted, compared to other norms). There are reasons to believe that other states, for example European states whose airspace was used for extraordinary rendition of detainees to black sites, were aware of the US’s covert exceptionalism. However, they refrained from pointing out the mismatch between the US’s behavior and its public statements of commitment to the torture prohibition frame. This tacit support for covert exceptionalism raises questions as to the depth of some norm addressees’ commitment to an absolute torture prohibition. Yet the public outrage after the revelations of the Bush administration’s practices and legal opinions indicates that civil society and domestic audiences, for example in the US and European states, expected abidance with the prevalent understanding of the torture prohibition as absolute. Public opinion exercised pressure on European in-group states to become more outspoken critics and also eventually on the US to revise its norm interpretation and to affirm the prior consensus. This confirms prior research that global civil societyFootnote 197 and domestic audiences’Footnote 198 reactions to interpretations of human rights are particularly consequential.
The widespread rejection of the US’s attempts to portray the revealed behavioral claims as falling outside of the torture prohibition, and the US’s eventual acceptance of this verdict, affirmed the prior consensus.Footnote 199 This norm clarification confirmed that norm addressees widely consider the torture prohibition to be absolute and to cover behavioral claims such as waterboarding and secret prisons, affirming social and relative norm strength.
With regard to the right to self-defense, the disagreement over the US’s resort to military force after terrorist attacks prior to 9/11 reduced clarity over the conditions under which terrorism triggers the right to self-defense or the prohibition of the use of force and the sovereignty of the targeted state prevails. This weakened social norm strength and created uncertainty over the relative strength of key norms in the sovereignty norm bundle. 9/11 clarified that when large-scale terrorist attacks occur, there is widespread consensus among norm addressees that the right to self-defense now permits military responses against states that willingly harbor terrorist groups who have attacked the responding state. This norm clarification increased the precision of the right to self-defense, and thus social norm strength, and the relative strength of self-defense vis-à-vis other norms in the sovereignty norm bundle in the context of a large-scale terrorist attack on the responding state. There is little indication that this change in relative strength affected the core of opposing norms, for example by hollowing out the prohibition of the use of force. Subsequent contested applications of this broadened right to self-defense against ISIL in Syria and Iraq indicate that in the absence of a prior large-scale terrorist attack on the responding state, there is much less agreement on whether using force in self-defense is permitted when governments where the terrorist threat is located are unwilling or unable to prevent terrorist attacks.Footnote 200 We can thus conclude that the right to self-defense continues to be seen as an exception to the prohibition of the use of force, and that international terrorism continues to raise questions as to the boundaries of this right vis-à-vis the prohibition of the use of force. While the norm clarification after 9/11 reduced this penumbra of doubt somewhat, it did not eliminate it.
5. Conclusion
Widespread acceptance or rejection of a norm frame and claim leads to norm clarification. This acceptance or rejection makes the norm more precise and provides a clearer reference point for actions. The case study analysis indicates that superior material power alone tends not to be sufficient to resolve contestation because of the need to legitimate new norm interpretations. The US was not able to gain approval for its preferred norm interpretations in both cases: While there was widespread agreement on broadening the right to self-defense in the context of large-scale terrorist attacks, the US’s attempts to narrow the prohibition of torture were widely rejected. The mixed success of the US’s norm interpretations also indicates that external events such as 9/11 can trigger contestation but that they do not necessarily lead to norm change. The preceding analysis shows that the intent behind the contestation, the reactions of others, particularly of in-group members, and the choice of legitimation strategies likely explain the difference in success.
The US’s strategy was different in both cases: While the US sought to achieve a generally applicable, universal redefinition of self-defense in the context of international terrorism, when it came to the prohibition of torture, the US initially tried to carve out an exception only for itself. Otherwise, the US would not have been secretive about its new understanding of what constitutes torture and would not have engaged in denial when criticized.
These different goals affected the justificatory discourse: While the US sought to show the necessity and utility of a reinterpretation of self-defense, it initially heavily relied on identity-based legitimation with respect to the prohibition of torture. The Bush administration’s initial covert exceptionalism indicates the social strength of the torture prohibition: The US’s perception that domestic and international audiences expect consistency and adherence likely led to the clandestine implementation of behavioral claims that were at odds with the prior consensus. The cultural match of the norm with the US’s identity facilitated identity-based legitimation and covert exceptionalism.
What also speaks to the importance of credibility is that the US’s image as a human rights-supporting country suffered as a result of the revelations of its legal opinions and harsh interrogation techniques. This negatively affected the US’s ability to criticize other states for their violations of the torture prohibition and other human rights norms. Additionally, the more that was revealed about the US’s harsh interrogation techniques, the more the US engaged in open reinterpretation and the more prominent references to the output legitimacy of these practices became.
References to output legitimacy also figured prominently in other countries’ statements of support for broadening the right to self-defense after 9/11. In episodes of contestation prior to 9/11, other perceptions of output legitimacy, for example a military response only fueling more terrorism, were often presented when rejecting the US’s interpretation of self-defense. However, principled disagreement was also common: particularly from out-group members, who prioritized alternative norm frames and claims. In general, this indicates that 9/11 changed perceptions of output legitimacy: The large-scale attack led to shared perceptions of the threat emanating from states harboring terrorists as a problem and that broadening the right to self-defense to be able to address this threat is justified. This norm clarification increased the social and relative norm strength of the right to self-defense in the context of large-scale terrorist attacks.
When it comes to the US’s contestation of the torture prohibition, out-group members accused the US of hypocrisy when criticizing the Bush administration, whereas in-group members mainly cited trust in the US when initially supporting the US’s claim of humane treatment of prisoners (identity-based legitimation). Later, in-group members engaged in principle-based legitimation and legal argumentation when rejecting the Bush administration’s norm interpretations. This suggests that supporters of norm interpretations are most likely to resort to output legitimation and identity-based legitimation, whereas opponents may also advance principled reasons, legal argumentation or question credibility when rejecting interpretations. Contestation increased uncertainty over the meaning of the prohibition of torture while it was ongoing. However, the widespread rejection of the US administration’s covert and overt attempts to narrow the torture prohibition, and the US’s eventual acceptance of this verdict, affirmed the social and relative strength of the torture prohibition.
The case studies also show the importance of in-group members’ reactions. When other liberal states started to criticize the Bush administration’s interpretation of torture, the US started to make tactical concessions and eventually abandoned its reinterpretation attempts. Regarding the debate over self-defense, when important in-group members disagreed with broadening the right to self-defense in prior episodes of contestation, pursuing the claim of military action had tangible costs, such as longer flight routes and lack of troop contributions. Additionally, the case study of the Bush administration’s contestation of the prohibition of torture confirms existing research that public pressure from global civil society and domestic audiences is particularly consequential when human rights violations occur.
