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.”
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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.