Dershowitz's Arguments For The Legalisation of Torture are both Nonsensical and Unnecessary

Professor Alan Dershowitz has always been one of the most prominent defenders of Israel, but more recently he has also become one of the most prominent advocates for the legalisation of torture.

What is the reason for this? Well, his argument goes something like this: torture happens, it always has and it always will. It happens in democracies, it happens in dictatorships, it happens in Iran and it happens in the US. Thus, he says:

“Every democracy, including our own, has employed torture outside of the law.
Throughout the years, police officers have tortured murder and rape suspects
into confessing -- sometimes truthfully, sometimes not truthfully.”

From this, he concludes that the choice is not between torture or no torture, but between whether we want torture to be regulated and happen within the law, or to continue as it is and be outside the law:

“Either police would torture below the radar screen of accountability, or the
judge who issued the warrant would be accountable. Which would be more
consistent with democratic values?”

Now, let’s review his argument: that because torture is inevitable, we should legalise it to at least ensure it is regulated and only happens in extreme, “ticking bomb” cases. There are several flaws in this argument even if we assume its premises to be correct. But first let’s examine the premises themselves:

I share Seth Finkelstein’s position:

“I stand in awe of Dershowitz's focus on legal authorization of torture as the
"real debate". All the moral and practical questions are swept away by his
assumption of inevitability. We are left only to consider how to deal with what,
if any, judicial procedures should surround torture.”

Dershowitz is making a huge assumption here – that torture goes on and will always go on, and cannot be stopped. He doesn’t justify this assumption at all, which is amazing since it underpins his entire argument. Without it, he has no case. I reject the assumption that we will never be rid of torture. Imagine if everyone had thought like this about slavery in America. Imagine an Alan Dershowitz pointing to all previous societies, to Ancient Egypt and Rome and the British Empire, and saying ‘look, we’ve always had slaves, and we always will do, so let’s atleast make the best of it’. That fact is that, by mass popular pressure, slavery was overthrown. You get rid of brutality and injustice by fighting for what’s right, not by giving in to resignation.

So Dershowitz is wrong to limit the debate to illegal or legal torture. The fact is that neither is consistent with “democratic values”. What is consistent with those values is a complete abolition of torture, and it is this that we must continue to strive for.

But let’s, for a second, ignore that grave flaw in his premises. What practical solution does Dershowitz offer for legalising and regulating torture?

“Under my proposal, no torture would be permitted without a "torture warrant" being issued by a judge.”

This “warrant” would “be based on the absolute need to obtain immediate information in order to save lives coupled with probable cause that the suspect had such information and is unwilling to reveal it.” In other words, a warrant would be issued in a “ticking bomb” scenario. What would the warrant authorise? It would allow torture, limited to “nonlethal means, such as sterile needles, being inserted beneath the nails to cause excruciating pain without endangering life” (I’m curling up at the thought).

The evidence extracted from this “excruciating” torture would not be permissible as evidence in court, but could be used to save lives.

So here already Dershowitz implicitly concedes the well-known fact that, using torture, it is possible to get someone to admit anything.

There are many flaws in this proposal. Firstly, let’s take a look at the “ticking bomb” scenario described by Dershowitz more explicitly:

“To prove that it would not, consider a situation in which a kidnapped child had
been buried in a box with two hours of oxygen. The kidnapper refuses to disclose
its location. Should we not consider torture in that situation?”

There is a problem with this scenario, often used as a justification for torture, is that it cannot be considered in isolation like that. The argument goes that the utilitarian thing to do would be to torture the kidnapper to save the child. In literal “ticking bomb” scenarios, the utilitarian case appears to be stronger – i.e. it would be morally correct to torture one terrorist to save the lives of thousands of people.

In fact, the opposite is true. Once you start allowing torture in certain circumstances – in this case for “ticking bomb” scenarios – what you are doing is making torture acceptable. Gradually, the situations in which torture is permissible will get wider and wider, and the use of torture will get more frequent. Sure, you will start with ‘torture is only acceptable if a terrorist admits he knows where the bomb is, but won’t tell you’. This then expands to include, ‘torture is only acceptable if you’re sure the terrorist knows where the bomb is, but isn’t telling’, and then to ‘only when you suspect the terrorist knows where the bomb is’. This will then get expanded to include ‘people who are associated with the suspect, and so who probably know something about it too’. Then the requirements of ‘suspect’ will get lowered, and so on and so on. The point is, torture will become acceptable. We will have gone from a society in which torture is a taboo and outlawed to one in which it is acceptable and commonplace. Thus, the utilitarian thing to do would in fact be to avoid torture whatever the scenario. As Harvey A. Silverglate so succinctly puts it: “This is a genie we should not let out of the bottle”.

Dershowitz himself acknowledges this point:

“We know from experience that law enforcement personnel who are given limited
authority to torture will expand its use”

...but doesn’t let this get in the way of his argument. He just moves on as if it didn’t exist, when in fact it destroys his argument completely, for a very simple reason: even if we accept Dershowitz’s premise that the real debate is between whether torture should happen legally or illegally, his proposal still wouldn’t hold up, because as he himself admits, there would still be illegal torture! It’s just that now, we would have both legal and illegal torture. Brilliant!

In a separate article, he provides a counter-point:

“By expressly limiting the use of torture only to the ticking bomb case and by
requiring a highly visible judge to approve, limit and monitor the torture, it
will be far more difficult to justify its extension to other institutions.”

This doesn’t make any sense. Currently torture is illegal, and so if the law or what a Judge says made such a difference to, as Dershowitz puts it, what goes on “in the back rooms of real police station houses”, then there would be no torture going on now, and so Dershowitz’s fundamental premise that ‘torture is inevitable’ would be false and his argument destroyed. If, on the other hand, the law and what Judges say makes no difference to what happens “in the back rooms”, then the argument that requiring Judges to authorise torture will restrict its use is false, since we have already established that, when it comes to torture, what Judges say doesn’t hold much water in the “back rooms”. Either way, Dershowitz’s argument is destroyed.

Dershowitz explains that torture is not banned by the Constitution:

“Any interrogation technique, including the use of truth serum or even torture,
is not prohibited. All that is prohibited is the introduction into evidence of
the fruits of such techniques in a criminal trial against the person on whom the
techniques were used. But the evidence could be used against that suspect in a
non-criminal case--such as a deportation hearing--or against someone else”

However, as Harvey A. Silverglate points out,

“Dershowitz fails to mention altogether another amendment — the Eighth, which
states quite plainly that no "cruel or unusual punishments [shall be]
inflicted." The modern-era Supreme Court has ruled that this standard, which is
inherently subjective, must be interpreted according to society’s evolving
standards of decency. It is likely that the pre–September 11 Court would have
ruled that techniques all would agree constitute "torture" would qualify as
"cruel" and (for our society, at least) "unusual."

Silverglate also argues very well another objection to Dershowitz’s idea:

“Second, we should think twice before entirely divorcing law from morality. There can be little doubt that until now, Americans have widely viewed torture as beyond the pale. The US rightly criticizes foreign governments that engage in the practice, and each year our Department of State issues a report that classifies foreign nations on the basis of their human-rights records, including the use of torture. Our country has signed numerous international treaties and compacts that decry the use of torture. We tamper with that hard-won social agreement at our grave moral peril.”

He also points out that our legal system already possesses methods for dealing with “ticking bomb” situation like the one Dershowitz proposed. He points to the famous ‘Regina v. Dudley and Stephens’ case to show how. Essentially, if a policeman were in the position where he really knew for certain that the terrorist possessed life-saving information, he could torture and then submit for trial. There are then various ways he can be acquitted, despite being obviously guilty. Thus, Dershowitz’s “torture warrants” are not only silly, but also completely unnecessary.

[Cross-posted at The Heathlander]