Incarceration, Interrogation, and Counterterror: Do (Liberal) Democratic Institutions Constrain Leviathan?

Abstract

States represent a solution to an important set of economic, political, and social problems. Whether one turns to philosophers such as Hobbes or Locke or more recent work by rational institutionalists such as Douglass North, it is something of a received wisdom that powerful states play a central and vital role in fostering economic, political, and social cooperation. The other edge of that sword, of course, is that powerful states that claim a monopoly on the legitimate exercise of coercion are ideally situated to predate, using methods that include incarceration without trial and torture. The very power that makes states effective at engaging in cooperation can weaken other organizations that might deter the state from predation. While democratic theory is not necessarily focused on the question of how we might constrain a powerful state's predation, democracy is—and, more specifically, liberal democratic institutions are—widely held to be one of the most important tools at our disposal to deter predation (e.g., Staton and Reenock 2010). Democracy, of course, refers to rule by the people, and in this article, I focus on universal suffrage as the means by which those who wield state power produce rule by the people. I refer to liberal democratic institutions, by contrast, as those institutions that perform a distinct—and, one can argue, antidemocratic—function: their purpose is to distribute power among multiple state actors in an effort to address the second edge of the sword described above and limit the tyranny of majorities. This article shows how this distinction usefully assists our assessment of the Bush administration's incarceration and interrogation policies in its war on terror.