Quantcast

William F. Schulz | The Nation

William F. Schulz

Author Bios

William F. Schulz

William F. Schulz is executive director of Amnesty International USA and the author of In Our Own Best Interest: How Defending Human Rights Benefits Us All (Beacon).

Articles

News and Features


TORTURE 'OFF THE BOOKS'?

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
rosa
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.

ALAN DERSHOWITZ


SCHULZ REPLIES

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.

WILLIAM F. SCHULZ



HITCHENS'S 'CULTURE WAR'

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.

NICHOLAS GUYATT



LBJ A RACIST? THINK AGAIN

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
actions.

PETER M. CONNOLLY


ALTERMAN REPLIES

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.

ERIC ALTERMAN

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.

Perhaps, upon reflection, that is not so strange. For what the ticking
bomb case asks us to believe is that the authorities know that a bomb
has been planted somewhere; know it is about to go off; know that the
suspect in their custody has the information they need to stop it; know
that the suspect will yield that information accurately in a matter of
minutes if subjected to torture; and know that there is no other way to
obtain it. The scenario asks us to believe, in other words, that the
authorities have all the information that authorities dealing with a
crisis never have.

Even aficionados of ticking bomb torture agree that its use can only be
justified as a last resort applicable to those we know to a moral
certainty are guilty and possess the information we seek. That 45
percent of Americans who reported last October that they approved of
torture were approving of the "torture of known terrorists if they know
details about future terrorist attacks." But how do we know all that?
The reason torture is such a risky proposition is exactly because it is
so difficult to tell ahead of time who is a terrorist and who is not;
who has the information and who does not; who will give the information
accurately and who will deceive; who will respond to torture and who
will endure it as a religious discipline. The fact is that many people
suspected of being terrorists turn out not to be, as our experience
since September 11 has proven so well; that, historically, many of those
subjected to torture are genuinely ignorant of the details the
authorities seek; that the information protracted with torture is
notoriously unreliable; and that torture almost always takes a long
time--days and weeks, not hours and minutes--to produce results. Torture
is of course extraordinarily common. Almost three-fourths of the world's
countries practice it. But not to find ticking bombs. To punish
political opponents. To intimidate their allies. To cow a citizenry. The
ticking bomb scenario in its purest form is a fantasy of "moral" torture
all too easily appropriated by tyrants as an excuse to justify the more
mundane variety.

And if the ticking bomb scenario is a fantasy, the Dershowitzian
addition of a "torture warrant" makes it into a chimera. Here is a
situation Dershowitz envisions for the warrant's use:

Had law enforcement officials arrested terrorists boarding one of the
[September 11] airplanes and learned that other planes, then airborne,
were headed toward unknown occupied buildings, there would have been an
understandable incentive to torture those terrorists in order to learn
the identity of the buildings and evacuate them.

This assumes that those law enforcement officials would have had time in
the hour and a half or so between the boarding of the planes and the
impact on their targets to (1) take the suspects into custody; (2)
ascertain with enough certainty to warrant torture that the suspects
were (a) terrorists who (b) had the needed information in their
possession; (3) apply to a judge for a torture warrant and make the case
for one; (4) inflict torture sufficient to retrieve the necessary facts;
(5) evaluate the validity of those facts in order to be assured that no
innocent plane would be identified and blown out of the sky; and (6)
take the steps required to stop or mitigate the terrorist act. Perhaps
after John Ashcroft has been Attorney General another three years, law
enforcement will have learned to cut enough corners of the legal
niceties to accomplish this feat. But at the moment, given the INS, Tom
Ridge, bureaucratic infighting and all, it seems unlikely.

Which leads to the question of whether, if the United States were to
become the first country in the world to adopt "torture warrants," they
would make us safer. That, after all, is presumably the only ultimate
rationale for their use. But here is another place where the traditional
ticking bomb case explodes in the face of reality. For it assumes that
there are no further detrimental consequences once the victims of the
bombing are saved--no retaliatory strikes, for example, by the torture
victim's comrades to pay back the inhumanity done to their brother. It
doesn't take much imagination to see how quickly officially authorized
torture would diminish the credibility of a struggle against terrorism
that is being fought in the name of defending American values and the
rule of law. How many people would need to be tortured before our allies
threw up their hands in disgust and our adversaries started celebrating
their moral victory? How many innocent people would have to be
brutalized before their resentment and that of their friends and family
would spill over into violence? In his book No Equal Justice law
professor David Cole has shown how mistreatment of the innocent by US
police can alienate entire communities and result in increases in crime.
Torture, similarly, is a sure-fire way to manufacture an embittered
opponent of the United States where there was none before. And make no
mistake that innocent people would be tortured, warrant or no, for,
after all, if close to 100 innocent people have been convicted of
capital crimes and sentenced to death in this country despite all the
protection our legal system offers, how much more likely is it that
miscarriages of justice will flow from the pen of a single judge?
Whatever leadership the United States can claim in the world is
intimately linked to our practice of values universally regarded as
fundamental to a civilized people.

So how could a distinguished human rights advocate like Alan Dershowitz
have strayed so far from the mark? Part of it may have to do with the
philosophical basis for rights that he sketches in the beginning of his
book. Wisely rejecting the notions that rights are derived from deity or
natural law and yet unconvinced that positivism alone provides
sufficient heft for rights claims, Dershowitz adopts what he calls the
"experiential-advocacy approach." In effect, he says, we should look to
history to identify prototypical instances of injustice (slavery, for
example) and then, based upon that human experience, construct a set of
rights--free speech, due process--that are most likely to bring about
the type of society in which we would want to live. So far, so good.
Human rights are assuredly derived from human experience.

But what if you disagree with my vision of the good society? The best we
can do, Dershowitz insists, is to try to argue you out of your myopia:
"That is all I can do," he says. "Defend my preference for [certain]
rights.... But I make no claim for these rights beyond my ability to
persuade you to agree with me that history--especially the history of
wrongs--has shown these rights to be important enough to be given a
special status in the hierarchy of preferences. It may surprise you to
learn that for me there is no sharp line...separating rights from
strongly held preferences." It is here that Dershowitz stumbles.

For while rights are, in a sense, preferences, they are also more than
that: They are norms, behavioral norms necessary to create and sustain a
good society. And they become norms not through argument alone but
through its conclusions, through an articulated consensus of the
international community. One of the most astonishing lacunas in the
philosophical section of Shouting Fire is the absence of even one
mention, if the index and my reading are to be believed, of the
Universal Declaration of Human Rights. For while the UDHR did not set
out to be a legally binding treaty (the State Department called it in
1948 "a hortatory statement of aspiration") and hence avoids the limits
of positivism, it does reflect--imperfectly, to be sure, but as well as
possible within the current limits of human endeavor--what St. Augustine
called our "overlapping loves," our common measures of a decent world.
To those who disagree with its vision of that world, we can offer much
more than a shouting contest, much more than any one person's reading of
history or any one nation's perception of its needs. We can offer the
collective wisdom of the human community as hammered out, written down
and, more and more frequently, enforced. And part of that wisdom is that
torture is wrong. Everywhere. In all circumstances. With or without
warrants.

Alan Dershowitz may not like that. And he is certainly entitled to go on
arguing about it. He is a persuasive fellow and eventually he may even
succeed in helping erode the international prohibitions on torture. That
will be a sad day, no doubt, but how comforting it will be to know at
that point that, thanks to the professor, the needles will be
sterile.