The Torturer's Apprentice | The Nation


The Torturer's Apprentice

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Alan Dershowitz prides himself on his credentials as a civil libertarian, and to judge by most of the essays in his latest book, Shouting Fire: Civil Liberties in a Turbulent Age, he has good reason to do so. The Harvard law professor has built a considerable reputation on his defense of free speech, due process and the separation of church and state, to say nothing of his propensity for controversial clients and clamorous talk shows. Shouting Fire is a pastiche of fifty-four essays, some of them new, most of them not, the earliest dating from 1963. The impetus for the collection appears to be at least in part a desire to reassert the importance of civil liberties, even in the face of such national security threats as those posed by the events of September 11 and their aftermath. Moreover, Dershowitz admirably offers what rights advocates rarely do: a philosophical grounding for civil and political rights beyond the mere positivist assertion that "that's the law."

About the Author

William F. Schulz
William F. Schulz is executive director of Amnesty International USA and the author of In Our Own Best Interest: How...

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Cambridge, Mass.

William Schulz, in his respectful but selectively critical review of
"less than two of [Shouting Fire]'s 550 pages," misses the point
of my proposal regarding torture warrants ["The Torturer's Apprentice,"
May 13]. I am against torture, and I am seeking ways of preventing or
minimizing its use. My argument begins with the empirical claim--not the
moral argument--that if an actual ticking bomb case were ever to arise
in this country, torture would in fact be used. FBI and CIA sources have
virtually acknowledged this. Does Schulz agree or disagree with this
factual assertion? If it is true that torture would in fact be used,
then the following moral question arises: whether it is worse in the
choice of evils for this torture to take place off the books, under the
radar screen and without democratic accountability--or whether it is
worse for this torture to be subjected to democratic accountability by
means of some kind of judicial approval and supervision. This is a
difficult and daunting question, with arguments on all sides. In my
forthcoming book Why Terrorism Works, I devote an entire chapter
to presenting the complexity of this issue, rather than simply proposing
it as a heuristic, as I did in the two pages of Shouting Fire on
which Schulz focuses. Schulz simply avoids this horrible choice of evils
by arguing that it does not exist and by opting for a high road that
will simply not be taken in the event that federal agents believe they
can actually stop a terrorist nuclear or bioterrorist attack by
administering nonlethal torture.

Schulz asks whether I would also favor "brutality warrants,"
"testilying" warrants and prisoner rape warrants. The answer is a
heuristic "yes," if requiring a warrant would subject these horribly
brutal activities to judicial control and political accountability. The
purpose of requiring judicial supervision, as the Framers of our Fourth
Amendment understood better than Schulz does, is to assure
accountability and judicial neutrality. There is another purpose as
well: It forces a democratic country to confront the choice of evils in
an open way. My question back to Schulz is, Do you prefer the current
situation, in which brutality, testilying and prison rape are rampant,
but we close our eyes to these evils?

There is, of course, a downside: legitimating a horrible practice that
we all want to see ended or minimized. Thus we have a triangular
conflict unique to democratic societies: If these horrible practices
continue to operate below the radar screen of accountability, there is
no legitimation, but there is continuing and ever-expanding sub
employment of the practice. If we try to control the practice
by demanding some kind of accountability, we add a degree of
legitimation to it while perhaps reducing its frequency and severity. If
we do nothing, and a preventable act of nuclear terrorism occurs, then
the public will demand that we constrain liberty even more. There is no
easy answer.

I praise Amnesty International for taking the high road--that is its
job, because it is not responsible for making hard judgments about
choices of evil. Responsible government officials are in a somewhat
different position. Professors have yet a different responsibility: to
provoke debate about issues before they occur and to challenge
absolutes. That is what Shouting Fire is all about.



New York City

Neither I nor Amnesty International can be accused of having closed
our eyes to the reality of torture, police brutality or prison rape. Of
course, some authorities may utilize torture under some circumstances,
just as others choose to take bribes. The question is, What is the best
way to eradicate these practices? By regulating them or outlawing them
and enforcing the law? That an evil seems pervasive or even (at the
moment) inevitable is no reason to grant it official approval. We tried
that when it came to slavery, and the result was the Civil War. Had we
applied Professor Dershowitz's approach to child labor, American
10-year-olds would still be sweating in shops.



Princeton, N.J.

Christopher Hitchens argues that "suicide murders would increase and
not decrease" if a two-state solution between Israelis and Palestinians
moved closer to reality ["Minority Report," May 13]. This claim seems to
bolster Sharon's cataclysmic "war on terror" in the occupied
territories: If terrorists seek to destroy peace and only feed on
Israel's generosity and sincerity, surely Sharon is correct to eliminate
"terror" as a precondition for negotiations?

In fact, the Oslo process has moved the Palestinians further from the
goal of a viable state, and the Israeli left's best offers to date (at
Camp David and Taba) envisage the annexation of the vast majority of
settlers to Israel in perpetuity along with blocs of land, which would
fatally compromise a nascent Palestine. As for Hitchens's observation
that the first suicide bombings coincided with the Rabin/Peres
government: How does this undermine the explanation that Israel's
prolonged oppression has created and fueled the bombers? Rabin and Peres
imposed a curfew on Palestinians rather than Israeli settlers after the
murder of twenty-nine Arabs by Baruch Goldstein in Hebron early in 1994
(the first suicide bombing was in response to this); they sent death
squads into the West Bank and Gaza to kill militants and those who
happened to be in their vicinity (the wave of suicide bombings in the
spring of 1996 followed one such assassination); and they greatly
expanded the settlements, contributing their share to the broader trend
of illegal settlement expansion that's doubled the number of Israelis
living across the Green Line since 1992.

Hitchens's promotion of a "culture war" between religious extremists and
secular opponents of "thuggery and tribalism" obfuscates the reality of
Israel's prolonged and enduring oppression of Palestinians. His argument
that a more generous Israeli policy would lead to more Palestinian
violence, meanwhile, serves to legitimize Sharon's current tactics. How
did such a clearsighted commentator become so myopic? Perhaps if
Hitchens stopped looking at every situation through the lens of the "war
on terror," he'd regain his former clarity of vision.



Washington, DC

I share Eric Alterman's admiration for the work of biographer Robert
Caro ["Stop the Presses," May 6]. But why does Alterman feel compelled
to refer to Lyndon Johnson as a "thoroughgoing racist"? Johnson was a
white man born in 1908 in the most racist region of the most racist
country on earth. He was born in a time and place where racism was
accepted as part of the atmosphere, where lynching was commonplace,
where black people led lives of unimaginable degradation (see Leon
Litwack's Trouble in Mind, a portrait of the early
twentieth-century Jim Crow South, which has to be read to be believed).

Of course, given his background, political ambitions and ineligibility
for sainthood, Johnson used racist language and shared racist
assumptions. Who from that time and place, wanting what he wanted, did
not? But what distinguishes Johnson, at all stages in his public career,
was his relative lack of public racism. Johnson was a New Deal
Congressman from 1937 to '48 who never strayed from loyalty to the
national Democratic Party even though conservative Texas Democrats were
in revolt against it from 1944 onward. Of course, running for the Senate
against a Dixiecrat in 1948 as Southern resistance to civil rights was
beginning to build, he opposed the Truman civil rights program. That was
the minimum required to be elected to Texas statewide office. Given the
pathological ferocity of Johnson's ambition, sticking with Truman for
re-election, as Johnson did, took guts that year. As a senator, Johnson
was never identified as a leader of the Southern bloc or as an enemy of
civil rights. Again, especially in public, he said and did the political
minimum to pay homage to the racist consensus. Caro evidently describes
his involvement in the Civil Rights Act of 1957, the forerunner of all
the other civil rights laws to come. Texas black and Hispanic voters
never doubted that, given the alternatives, LBJ was their man.

Johnson later became the greatest civil rights President in history,
pushing through the epochal changes in the laws, appointing Thurgood
Marshall to the Supreme Court and going so far as to vet prospective
federal judges with the NAACP Legal Defense Fund. Blacks who worked with
him, like Roger Wilkins, remember him fondly while acknowledging his
ancestral racism, which he tried, not always successfully, to transcend.
But if Johnson is a "thoroughgoing racist," where does that leave
Richard Russell, James Eastland or Strom Thurmond--or Richard Nixon, for
that matter? What about Barry Goldwater, who was probably less "racist"
than Johnson but was an opponent of all civil rights legislation and was
the leader of the forces of unrepentant segregation (i.e., racist murder
and oppression) in 1964?

As with Abraham Lincoln, also now under renewed attack on similarly
ahistorical grounds, to describe Johnson as an extreme racist flattens
the historical landscape and renders the fierce conflicts of a past age
meaningless. There is nothing wrong with honestly describing anybody's
racial views, including those of Lincoln or Johnson. But in studying
history, context is everything. And in studying Lincoln or Johnson, what
matters most is not the ways they shared their contemporaries' racial
attitudes but the ways they did not, as reflected in their words and



New York City

There's a bit of hyperbole in Peter Connolly's thoughtful letter, and
I disagree with his point about it taking guts to stick with the
Democratic President, but by and large I think his criticism is on the
mark, and I appreciate it. He is right. Context is everything.
Johnson may have been a racist, but unlike most politicians in his time
and place he was not a "race man." That's an important distinction, and
I wish I had considered it.


If this were all Dershowitz had done in Shouting Fire, the book might have received its share of kind reviews and headed off to Remainderland. But in less than two of the book's 550 pages, he manages to guarantee the collection a longer shelf life. For in an addendum to a 1989 article in the Israel Law Review, Alan Dershowitz, civil libertarian, champion of progressive causes, counsel to human-rights hero Anatoly Shcharansky, makes a case for torture or, more exactly, for the creation of a new legal device that he dubs a "torture warrant." And then, through a deft combination of newspaper editorials, public appearances and an extended interview on 60 Minutes, Dershowitz has expanded upon that proposition in a way designed to make talk of torture routine and, not incidentally, banter about his book robust.

Dershowitz's proposal, therefore, deserves careful scrutiny, not only because it comes from a respected voice but also because sources in the FBI have floated the possibility that torture will be applied against prisoners or detainees who refuse to tell what they know about terrorists. Last October 45 percent of Americans approved of that. Today, thanks to Dershowitz and others having lent the idea the patina of respectability--Jonathan Alter writing in Newsweek, Bruce Hoffman in The Atlantic--the number may be higher.

Dershowitz starts with the familiar scenario from every freshman philosophy class, the case of the ticking bomb. Suppose the authorities are holding a suspect who knows where a ticking bomb is located, a bomb that will kill hundreds of people if it explodes. Would they be justified in torturing the suspect to procure the information and thereby save innocent lives?

Dershowitz contends that whether we like it or not, the officials would inevitably resort to torture and, what's more, the vast majority of us would want them to. But because any officer who did so might be subject to prosecution, despite the availability of the common law defense that a crime may be justified if it is necessary to prevent a greater evil, the onus of responsibility should not be left on the individual official. Instead the authorities should apply to a court for a "torture warrant," similar to a search warrant, so that the courts must bear the burden of authorizing torture or the consequences of failing to do so. In another context Dershowitz has offered the reassurances that "the suspect would be given immunity from prosecution based on information elicited by torture" and that "the warrant would limit the torture to nonlethal means, such as sterile needles being inserted beneath the nails to cause excruciating pain without endangering life."

Despite these precautions, however, Dershowitz's proposal has not met with universal acclaim, and in recent weeks he has appeared to be distancing himself from it. In a February 17 letter to The New York Times Book Review responding to a critical review of Shouting Fire, Dershowitz claims that "the only compromises [with civil liberties] I suggest we should consider, and not necessarily adopt, relate directly to protecting civilians against imminent terrorist attacks [emphasis added]." But there is no hint on the two relevant pages of Shouting Fire that Dershowitz's "torture warrant" proposal is merely hypothetical. Indeed, in commenting on the decision by the Supreme Court of Israel that prompted the idea in the first place, he chastises the court for leaving interrogating officers vulnerable to prosecution if they use torture and says, "The Supreme Court of Israel...or the legislature should take the...step of requiring the judiciary to assume responsibility [for torture] in individual cases." Dershowitz is stuck with his "torture warrants" just as surely as Arthur Andersen is stuck with its Enron audits.

So what, after all, is wrong with that--other than the fact that torture violates both the Convention Against Torture, which the United States ratified in 1994, and the Constitution? The first thing that is wrong is that the act of torture, unlike that of searching for something, is in itself both universally condemned and inherently abhorrent. Under international law, torturers are considered hostis humani generis, enemies of all humanity, and that is why all countries have jurisdiction to prosecute them, regardless of where the torture took place. The fact that a US court or legislature might offer its approval of the act does not abrogate that internationally recognized standard any more than a court in Singapore that authorizes the jailing of a dissident journalist makes Singapore any less guilty of violating the rights of a free press. Tyrannical governments often try to cloak their human rights violations in national statute. It is interesting, however, that no country has ever legalized torture except, arguably, Israel, until the Israeli Supreme Court struck down the provision for the use of "moderate physical pressure," and even while that provision was on the books, the Israeli government argued vehemently that such pressure was not the equivalent of torture.

To see more clearly the shoals upon which the "torture warrant" flounders, consider this. There is no doubt that despite official efforts to eradicate it, police brutality is practiced in many US jurisdictions and probably always will be. Some police officers will claim, in their more candid moments, that the use of excessive force is often the only way to protect the lives of officers and the general public. Why ought the police not be able, therefore, to apply for "brutality warrants" in specialized cases? Why ought police officers who believe that a little shaving of the truth on the witness stand is worth sending a bunch of drug pushers to prison, thus protecting hundreds of youngsters from a life of drugs and crime, not be able to seek "'testilying' warrants"? Why ought correctional officers who argue that allowing dominant male prisoners to rape other prisoners helps preserve order among thugs and thus protects the lives of guards not be allowed to seek "warrants to tolerate prisoner rape" in particularly dangerous situations? The answer in all cases is the same: because the act itself (brutalizing citizens; committing perjury; facilitating rape) is itself abhorrent and illegal. Dershowitz's analogy to search warrants fails because, while a particular search may itself be illegal, the act of searching is not ipso facto unethical or a crime. For a society to start providing its imprimatur to criminal acts because they are common or may appear to provide a shortcut to admirable ends is an invitation to chaos.

But even if torture were a licit activity under some circumstances, there are very good pragmatic reasons to reject its use. If the ticking bomb scenario were designed only to establish the abstract moral calculus that the death of X number of people constitutes a greater evil than the torture of one, it would certainly be possible to make a plausible utilitarian argument for torture. The problem is, however, that the proponents of the ticking bomb scenario want it to serve as the basis of public policy, and unfortunately reality rarely conforms to scenarios and life doesn't stop where the scripts do. How strange that though the ticking bomb scenario has been used for decades to justify torture, its defenders are unable to cite the details of even one verifiable case from real life that mirrors its conditions.

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