The Torturer's Apprentice
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."
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.