It’s the image of sterilized needles slid under the fingernails of suspects “for fifteen minutes, causing excruciating pain,” as Harvard Law School professor Alan Dershowitz said on NPR on March 15, that stays with you. He argues you’d need permission, a “torture warrant,” before inserting the needles and explained how the warrants, which would be signed by the President or a high-level official, would insure that regular military personnel (the needle inserters) would not be punished for using techniques they are, in fact, expected to employ.
In May 2004, during the weeks after the Abu Ghraib photos were shown on 60 Minutes II, Dershowitz presented his case for torture warrants and harsh interrogation techniques on Good Morning America, CNBC’s Capital Report, ABC’s Nightline, and CNN’s Crossfire; his arguments have also been cited in The Weekly Standard, the Washington Times, and the National Review Online, among other publications.
Dershowitz may be more willing than most academics to talk about specifics. But a number of professors on the “torture circuit”–the talks, roundtables and debates on the subject that have taken place at universities, law centers and conferences over the past four years–have echoed his points. For these professors, the message is clear: Toughen up. In a debate with Physicians for Human Rights executive director Leonard Rubenstein in Cambridge, Massachusetts, on February 28, 2003, for example, Harvard Law School professor Richard Parker balked when Rubenstein said torture should be forbidden under any circumstances. “The idea that anybody would take an absolutist position seemed kind of absurd to him,” Rubenstein recalls.
Another Harvard law professor, Philip Heymann, with Juliette Kayyem, a lecturer at Harvard’s Kennedy School of Government, influenced Congresswoman Jane Harman’s drafting of legislation that would authorize harsh interrogation techniques under certain conditions. Harman discussed the proposal in a speech at Georgetown University on February 7 and was criticized by human rights activists. Quietly, the Harvard plan was dropped.
In some cases, the academics have crossed into government service. In The Torture Papers: The Road to Abu Ghraib, co-editor Karen Greenberg, executive director of NYU School of Law’s Center on Law and Security, says many of the people on the “path to torture” have affiliations with the academy, including, most famously, John Yoo, who served as attorney in the Justice Department’s Office of Legal Counsel and helped draft memos that outlined a strict definition of torture. Yoo studied at Harvard and got a law degree from Yale. He has taught at the University of Chicago Law School and is now a professor at UC Berkeley Law School, Boalt Hall.
In an essay titled “Torture, Terrorism, and Interrogation” in Torture: A Collection, edited by Sanford Levinson, Richard Posner, a judge on the US Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School, agrees with Dershowitz, writing that “if the stakes are high enough torture is permissible.” Interestingly, Posner seems to think torture is more acceptable if it takes place far from home. “Torture is uncivilized, but civilized nations are able to employ uncivilized means, at least in situations of or closely resembling war, without becoming uncivilized in the process,” he writes. “I suspect that this is particularly true when the torture is being administered by military personnel in a foreign country.”
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In a conversation with journalist Mark Bowden about the capture of a supposed Al Qaeda leader, the chair of the University of Pennsylvania’s Department of Medical Ethics, Arthur Caplan, said, “I would be willing to get pretty rugged with this guy, and to employ psychological and pharmacological tools.” Two years later, Caplan told a Washington Post reporter he could “imagine a few situations at the extreme where you might resort to torture.”
A CUNY professor goes further. Philosophy professor Michael Levin is the author of “The Case for Torture,” a 1982 essay he continues to defend. “Perhaps the most terrifying moment came when an urbane American academic [Levin] argued the case for torturing not only suspects but even their infant children, if it would induce them to talk,” writes Robert Shrimsley, reviewing Channel 4’s “Is Torture a Good Idea?” in the March 4 Financial Times. “With his cheery evocation of such appalling techniques, Michael Levin…was a living personification of what Hannah Arendt called the banality of evil.”
Less celebrated, but also committed, is Fritz Allhoff, an assistant professor of philosophy at Western Michigan University and panel member at an American Society for Bioethics and Humanities conference in Washington, DC, in October. In a paper titled “Terrorism and Torture,” he says, “the captive should be allowed the opportunity to voluntarily disclose information,” and, one-upping Dershowitz, muses over the options if the captive doesn’t: “a wide range of (historically) practiced techniques, which can range from the mundane (e.g., food deprivation) to the creative (e.g., removal of fingernails).”
Meanwhile, Mirko Bagaric, head of Deakin University’s Law School, in Australia, co-wrote “Not Enough (Official) Torture in the World? The Circumstances in Which Torture Is Morally Justifiable” for the Spring issue of University of San Francisco Law Review. In his article he says 132 countries use torture, according to Amnesty International, and we may as well regulate it. (He doesn’t mention what we should do about rape.) Like Dershowitz, he talks about sticking needles under a suspect’s fingernails. Meanwhile, American University’s Washington College of Law professor Kenneth Anderson argues in a November post on his blog, Kenneth Anderson’s Law of War and Just War Theory, that we shouldn’t put someone like Abu Musab al-Zarqawi, head of Al Qaeda in Mesopotamia, “through Saddam’s meatgrinder.” But waterboarding? “In a heartbeat,” Anderson writes.
University of Chicago Law School professor Eric Posner (Judge Posner’s son) was nearly as tough at the American Constitution Society convention in Washington, DC, in July–although he didn’t mention needles or fingernails. Instead, he described a police chief in Frankfurt, Germany, who threatened a law student in his custody who had kidnapped an 11-year-old. It was, apparently, a gritty example of when torture, or its threat, is appropriate. Yet Posner neglected to mention that the boy was dead when police found him.
There’s nothing unusual about academics taking a position that has dubious application in the real world. But it’s somehow different when theory is used to justify inflicting pain, especially when a sly smile creeps across the face of a professor as he discusses it at an American Society of International Law conference. I found it hard to listen without thinking about people in Iraq who’ve told me about the techniques US military personnel have used on them. One of them, a 36-year-old human rights lawyer from Samarra, showed me a red hole in his knee where electrodes had been placed during his interrogation. Yet clearly scholars play an important role in guiding public debate over how best to protect the security of our country and preserve values Americans hold dear. If only the conversations were more informed, says a human rights activist, and less concerned with how to defend the use of torture. Physicians for Human Rights’ Rubenstein says academics like to bat around the “ticking bomb” argument. “In my heart of hearts, I believe some people do treat it as a game,” he says. And as Georgetown Law School professor David Luban writes in “Liberalism, Torture and the Ticking Bomb,” which appears in Greenberg’s The Torture Debate in America, the ticking bomb and similar arguments sidestep the question: “Do we really want to create a torture culture,” he asks, a twisted world in which universities offer “an undergraduate major in torture.”
Historically, a climate of fear and misinformation has rarely lent itself to robust public debate. Between May 1942 and January 1946, nearly 120,000 Japanese-Americans were taken from their homes and placed in detention camps in Utah, Colorado and other states–some for years–because of their supposed threat to national security. Walter Lippman, William Randolph Hearst and Chief Justice Earl Warren, who was governor of California at the time, supported the policy. So did the Harvard Law Review, which in June 1942 published “The Law of Martial Rule and the National Emergency,” in which Charles Fairman, a Stanford University law professor, explains that “among the Japanese communities along the coast there is enough disloyalty, potential if not active, to make it expedient to evacuate the whole.”
It wasn’t until June 1945 that a prominent intellectual, Eugene Rostow of Yale Law School, objected to the internment. Rostow’s article was an “American J’Accuse,” said Louis Pollak, a former Yale Law School dean, that included the following lines: “The war power is the power to wage war successfully, as Chief Justice [Charles Evans] Hughes once remarked. But it is the power to wage war, not a license to do unnecessary and dictatorial things in the name of the war power.” The article helped start a movement to address the injuries inflicted on Japanese-Americans. On August 10, 1988, President Reagan signed a bill granting restitution to the Japanese-Americans and immigrants who had been held in the camps. Today, many academics have spoken out against torture, including Yale Law School dean Harold Hongju Koh, who has described the Justice Department’s memos on torture as “embarrassing” and “abominable.”
Even Ruth Wedgwood, a prominent law professor at Johns Hopkins School of Advanced International Studies known as a staunch supporter of the Bush Administration’s “war on terror,” came out against the harsh interrogation techniques in a June 28, 2004, Wall Street Journal piece. Some have followed the example set by Rostow, whose article criticizing the internment of Japanese-Americans, as Anthony Kronman, dean of Yale Law School, once said, had not “a single wavering sentence.”
Columbia University law professor Jeremy Waldron’s article in the October Columbia Law Review shows the same rectitude. “Perhaps what is remarkable is not that torture is used, but that it is defended (or something very close to it is being defended) and defended not just by the hard men of state security agencies but by some well-known American jurists and law professors,” he writes in “Torture and Positive Law: Jurisprudence for the White House.” “That views and proposals like these should be voiced by scholars who have devoted their lives to the law, to the study of the Rule of Law, and to the education of future generations of lawyers is a matter of dishonor for our profession.”
