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The paper analyses a central puzzle that exists in two opposing yet concurrent developments: more and more international human rights laws and standards are negotiated and agreed upon between states but at the same time, such obligations are circumvented when they are perceived to impact on national interests (especially with regard to national security). It examines the relationship between norm acceptance and implementation (that is, human rights as agreed upon and codified in international law) and norm compliance by looking at the contested interpretations of established standards. As Wiener and Puetter (2009, p. 3) rightly argue, international law is increasingly used as a reference frame for the legality of policy decisions, but paradoxically and at the same time, it is international law itself that is increasingly contested.
The focus of this article is on the use of torture or 'enhanced interrogation methods' in the context of the US 'War on Terror'. The so-called 'torture memos' that were issued during the Bush presidency show different arguments that were made by the government to justify their conduct and to demonstrate that these actions were in line with existing international legal obligations. The article employs Wiener's approach of analysing the 'meaning-in-use' of the prohibition of torture as an international human rights norm by examining compliance and how the norm is being contested through different interpretations and usages on the domestic level. At the same time, the article also utilises Brunnée and Toope's similar approach of an interactional account of international law that focusses on the practice of existing legal norms. The overall argument of the article is that rather than simply ignoring its international legal obligation, the Bush Administration went to great lengths to justify its conduct within existing international law, attempting to make their conduct appear to comply with legal obligations. As Alvarez (2005-2006) rightly argues, officials did not ignore law but they systematically misinterpreted and 'tortured' it 'so that everyone can feel clean'. (p. 178) The memos attempted to twist international law and misconstrued various treaty obligations to make policies 'fit'. By referring to already embedded international legal standards, the administration thereby shaped and also clarified the shared understanding of the anti-torture norm.
The article starts with a brief outline of the argument's main analytical framework...