Torture, Civil Libertarian Style

Four weeks ago, civil libertarians thought Frankfurter Professor of Law Alan M. Dershowitz was in their ideological camp. Now they aren’t so sure.

In a recent appearance on 60 Minutes and a subsequent op-ed for the San Francisco Chronicle, Dershowitz argued that when immediate information is needed to save lives and the people who possess that information aren’t talking, investigators should be allowed to apply to judges for “torture warrants.”

What Dershowitz’s torture warrants would authorize is cringe-inducing. We get a hint in his op-ed: “The warrant would limit torture to nonlethal means, such as sterile needles being inserted beneath the nails to cause excruciating pain without endangering life.”

Excruciating pain? Needles beneath nails? Surely these aren’t the words of America’s most telegenic civil libertarian. Yet in a conversation this week, Dershowitz assured me they are.

“People who say it’s inconsistent with my past views don’t understand my past views,” he told me. “I wrote about torture back in 1989, but nobody paid any attention.”

Dershowitz is referring to an article he originally published in the Israel Law Review. Tamer than his recent statements, it raises the ethical conundrum of torture without saying how (or whether) torture should be legally justified. But although his 1989 thinking hadn’t evolved to the needles-under-the-nails point, the article does show that the question of torture has long weighed on Dershowitz’s mind.

His controversial statements reflect his view that, as a practical matter, the use of torture is unavoidable.

“I don’t think [torture] takes place in Guantánamo,” he says, “but I do think it takes place in the back rooms of police stations to get confessions. It might take place on the field in Afghanistan. It would take place in the ticking bomb scenario.”

The “ticking bomb scenario” is a permutation of a classic moral dilemma. Suppose a bomb in a secret location were set to go off, killing hundreds. Would it be justifiable to make a terrorist disclose the bomb’s location by torturing him?

“I haven’t found a rational person who wouldn’t agree that if we could prevent a terrorist attack by administering non-lethal pain, we should do it. The question is whether it will be open or secret.”

But not everyone does agree; in particular, the ACLU (whose rationality is often suspect) has criticized Dershowitz’s position. And he has found criticism from other quarters.

“I received a letter from kids of a Holocaust survivor who were angry with me because the Nazi regime used torture. That’s stupid. I wrote back asking, if the lives of Holocaust victims could be saved by torturing one Nazi, should we do it? People don’t think of that. There’s a lot of knee-jerk disappointment, but I say to these people, ‘You can’t be disappointed in me. You don’t own me. Only my mother has the right to be disappointed in me.’”

Nobody owns Dersh. But some people think he’s wrong—especially those who think rights are absolute and inviolable. What does the professor say to them?

“I am categorically against absolutes. Absolutes come from God, maybe nature, but not from legal processes. I’m not a ‘Taliban civil libertarian.’ Rights aren’t written on tablets; they grow out of our experience.”

In fact, Dershowitz thinks civil libertarians of the non-Taliban variety would support his proposition. “The essence of civil libertarianism is to make sure everything is out in the open,” he says. Those words echo his op-ed, which states that “[e]ither 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?”

It’s a good question. Let’s assume for argument’s sake that torture—the “time-tested technique for loosening tongues,” as Dershowitz has called it—will inevitably occur in “ticking bomb” scenarios. Let’s even assume it’s morally justifiable, and that the information obtained is reliable (a claim that many dispute). Isn’t it better to have the use of torture governed by a judicial system subject to democratic checks than by the whims of individual agents?

At least some (apparently rational) people don’t think so. Ames Professor of Law Phillip B. Heymann offered me a series of objections to the systemization of torture.

To begin with, there is concern that judicial authorization would make torture a common practice as investigators turn away from other techniques. That worry seems especially plausible if judges don’t turn down requests for “torture warrants” frequently enough to discourage agents from resorting to torture except as a last resort. And even when judges do say no, there’s no guarantee that agents won’t torture illegally (as Dershowitz accuses them of doing currently).

Heymann also worries about global repercussions. “If we approve torture in one set of circumstances,” he asks, “isn’t every country then free to define its own exceptions?”

Fair enough. But does that mean our only option for diffusing the “ticking bomb” is to torture secretly and illegally?

Not necessarily. The “ticking bomb” scenario is only a theoretical model. Some doubt the probability that a situation would arise in which torture is the only avenue available. Heymann suggests conducting “emergency searches” and inducing suspects to reveal information over tapped lines. And he would prevent the “ticking bomb” scenario in the first place by allowing “freer electronic surveillance of non-citizen visitors who we have reason to suspect are terrorists”—something he says he wouldn’t have supported before Sept. 11.

Which brings us to the crux of the matter. The horrific attacks of Sept. 11 produced unprecedented questions about the balance between civil liberties and national security. That the use of torture has become palatable enough for Harvard’s legal scholars to debate its merits is testament to that fact. And no matter where the debate ends up, Alan Dershowitz is sure to play a central role in getting it there. So don’t bother writing to tell him how disappointed you are.

Unless, of course, you are his mother.

Jason L. Steorts ’01-’03 is a philosophy concentrator in Dunster House. His column appears on alternate Fridays.