Barbarism: A Tortured Defense

Is torture acceptable in the fight against terrorism? It has been reported that former Clinton special prosecutor Kenneth Starr has asked the question aloud while speculating that as many as five U.S. Supreme Court justices would find torture constitutional in certain circumstances. No forceful denials by any justice have been heard publicly. Bruce Hoffman, an analyst with the Rand Corporation, asks the torture question aloud in the January edition of the Atlantic Monthly, citing a movie about French tactics in Algeria and tactics used in Sri Lanka. President George W. Bush has formulated a new military tribunal to try terrorists that winks at due process. This measure is said to be very necessary to keep the terrorists from “getting at” judges and juries.

More recently, Frankfurter Professor of Law Alan M. Dershowitz has stated while being interviewed on MSNBC that non-lethal torture would be acceptable to force information from a prisoner where there is “very good evidence” that the prisoner has information that would save innocent lives and refuses to give it. Although he stated that he was not advocating torture, Dershowitz suggested a clinical method of torture using sterilized hypodermic needles to be inserted under the recalcitrant’s fingernails, which he and the interviewer agreed would be excruciating.

Demonstrating his constitutional expertise, Dershowitz said that a judge’s authorization would be needed for a specified method of torture—a mere police official could not authorize torture. Dershowitz reached into his knowledge of our collective subconscious and explained that everybody wants torture to be used in such circumstances and would be glad that torture saved innocent lives. He stated that torture is used in such circumstances and that in a democracy it is no good for the people not to publicly deal with that fact and to hypocritically condemn such practices. Democracies have to get their “hands dirty” according to Dershowitz, who took a few more seconds to leap over the Constitution, the Geneva Accords, the Universal Declaration of the Rights of Man, and any other treaty outlawing torture. And Dershowitz was merciful too—after all, is not torture less harmful than death? Dershowitz mentioned at that very moment he was suffering severe pain as a result of kidney stones, and yet he was able to stand there touting his new book by mentioning torture.

One may have expected the interviewer to at least quibble a bit, but he was satisfied with his scoop that a liberal Harvard professor of constitutional law would agree to torture. Indeed, they had quite an amiable chat, as though Dershowitz had uttered a seminal thought that had not been thought previously or put into practice by Caligula, Torquemada, Hitler, Stalin and Mao.

Apparently the media are in the business of shaping or reshaping opinion on the issue of torture. One is reminded of those poems and paintings which juxtapose beautiful nature with atrocities. Does Dershowitz stroll about Harvard without encountering disagreement? Does he conduct his lectures as a tenured professor at Harvard without hearing disagreement? Does he discuss his views on torture over dinner with his colleagues and do they agree with him or understand his position? Do his students show him their contempt for torture?

If we are too timid to face the consequences of eschewing torture, if we are not willing to die to prevent torture, if our judges and juries are too timid to face accused terrorists, if we need our president to relieve us from these onerous duties, we are finished as a free society. For there are many emotively good causes that may be “assisted” by torture or by some other odious but expeditious means.

William J. Ferrari is an attorney in Rochester, Michigan.