In Chapter 5, I investigate the emergence, institutionalisation, and cessation of the US use of torture during interrogation, in the form of ‘Enhanced Interrogation Techniques’ developed for the CIA’s detention and interrogation programme. I question whether this represents the erosion of international and domestic prohibitions on torture and find that it does not; they too continue to exist, but temporarily transformed, before reverting back to their earlier form. This process occurred because the CIA developed a new ‘science’ of interrogation and placed it at the centre of new institutional capacities to detain and interrogate ‘high-value’ prisoners, which they justified on the basis of its scientific validity and efficacy. Their legal and scientific arguments revolved around distinguishing their activities from torture, which they never claimed was appropriate but also never admitted to using. As these justifications increasingly failed, the use of EITs stopped and was again prohibited.

This chapter argues that what appears to be a break in the US policy towards its GC III obligations is really a change in emphasis from positive reciprocity to negative reciprocity. The multi-actor setting of US policy decision making made such a change possible. The chapter begins by examining the period from the end of the Vietnam War through to the USA-led NATO bombing campaign against Yugoslavia. It demonstrates how a split emerged, one that had not existed previously, between US policy makers and the military in attitudes towards reciprocity and IHL obligations. It then analyzes three key decisions: (i) to use military commissions to try detainees for IHL violations, (ii) to deny POW status to detainees, and (iii) to use “enhanced interrogations techniques” when questioning detainees. It argues that logic of appropriateness explanations cannot fully explain US policy decisions towards the treatment of detainees in the GWOT. In each of the three policy decisions examined, concerns with specific negative reciprocity are necessary to understand fully the US decision not to apply GC III.