The Torturer's Apprentice

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					The Torturer's Apprentice
Civil Liberties in a Turbulent Age
By William F. Schulz
This article appeared in the May 13, 2002 edition of The Nation.

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
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

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.

About 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).