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.”