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.”