Alan “The Needle” Dershowitz
By C. Clark Kissinger
In early November controversy irrupted on the internet over Harvard Law Professor Alan Dershowitz’s proposal to legalize torture in the United States to extract information from terrorism suspects. So when Dershowitz appeared on January 27 for a long scheduled lecture on civil liberties at the 92nd Street Y in New York, the entire audience was given leaflets by the activist group Refuse & Resist! that quoted from his remarks. These included his suggested use of truth serum on suspects, and his remark to the Harvard Political Review that “There’s no absolute right not to be tortured.”
That night the Kaufmann Concert Hall was packed with a graying and mostly Jewish Upper Eastside audience of 900. The format was a Charlie Rose-style interview on stage, with Dershowitz undergoing a friendly interrogation by noted civil liberties attorney Floyd Abrams.
Most people would have thought this a good time to moderate his views. But Dershowitz didn’t title one of his books Chutzpah for nothing. Holding the leaflet charging him with being soft on torture in hand, Dershowitz launched into a spirited defense of his position. The fact that a noted “civil libertarian” and critic of the Bush theft of the White House could make a serious pitch to a liberal New York audience for legalized torture -- and not get booed off the stage -- tells us just how close we are to the acceptance of police state methods in the wake of September 11.
Dershowitz warmed up the audience with a few liberal homilies like “it’s bad that people get more upset when a guilty person goes free than when an innocent man is convicted.” Then Floyd Abrams went right to the topic on everyone’s mind -- Deshowitz’s views on torture. And Dershowitz obliged.
Dershowitz states that he is actually opposed to torture and wants to see it reduced to the extent possible. But then he goes on argue for a system of court authorized warrants to administer torture in extraordinary cases. Whether it was shock or acceptance, there wasn’t even a cry of “shame!” from the audience when Dershowitz went on to describe how it might best be done: the insertion of a sterilized needle under the fingernails to produce “excruciating pain.”
Dershowitz made it clear that he was not talking about either lethal torture or torture used to extract confessions. In fact, part of his scheme is for the new “torture warrants” to include a grant of immunity. Anything needled out of a suspect could not be used against him or her in court. Instead the purpose would solely be to extract information to enable authorities to head off up-coming terrorist attacks and thereby save lives.
Floyd Abrams, to his credit, demurred from the Dershowitz scheme, suggesting that it would dirty the judicial system to start authorizing any such thing. But Dershowitz returned time and again to his “ticking bomb” argument: suppose there was a bomb set to go off that would kill hundreds and you had a suspect in custody who knew where it was. Wouldn’t a little torture to get the information be justified? Or as Dershowitz put it, “Pain is not the worst thing in the world. You get over it.”
In the course of the discussion, Dershowitz made three major arguments for the legalization of torture. His first argument was the practical one: it’s going to go on anyhow, so better in an open and democratic society that we know who is doing it to whom and why, and who is accountable. His second argument was a “moral” one: what’s some temporary pain to one individual when stacked against the lives of hundreds? His third argument was a legal one: because of the attached grant of immunity, there would be no conflict with the Fifth Amendment prohibition against coerced self-incrimination.
So what’s wrong with these arguments? The first argument is actually quite an admission that government agents are, in fact, going to beat prisoners to get information, no matter what the fine documents of law say. Also it is essentially the same as the argument for legalizing prostitution: “It’s going to go on no matter what, so better to legalize it and have health inspections.” But there is no limit to this kind of reasoning. Should we next go on to court issued “rape warrants”? If it’s going to go on anyhow, why not have women raped under court supervision in order to ensure that they are not later murdered? What all these arguments have in common is the assumption that there is no alternative to the crimes and exploitation that go on in this society. So in the name of some “greater good,” the crimes are rationalized, institutionalized, and made acceptable.
But while we are on the topic of court-issued “torture warrants,” just what kind of protection would that afford anyhow? When do judges now ever refuse the cops a search warrant, and why would it be any different with “torture warrants”? In fact, one major thrust of the new USA-Patriot Act, rushed through Congress in the aftermath of September 11, is to greatly expand the scope of secret search warrants issued by secret courts whose records are then sealed. Does anyone think that an administration that is into executing people through military tribunals from which there is no appeal is going to shirk from authorizing torture in secret as well? The whole Dershowitz argument that “torture warrants” are somehow going to create accountability (much less restraint) just doesn’t hold up in the real world.
Ironically, Dershowitz spent a part of his talk deriding the U.S. Supreme Court for the theft of presidential election. He even called Justice Sandra Day O’Connor “the biggest liar on the Court.” So these are the people we are suppose to trust with the administration of torture?
As for the “moral argument,” Dershowitz uses the rhetorical trick of creating a hypothetical situation that never arises in the real world in order to elicit assent for a truly horrific practice that exists all too much. It’s not like police or intelligence agencies keep taking mad bombers into custody before the fact, and these individuals tell them “I’ve set a bomb, but I’m not going to tell you where it is. So there.” What DOES happen is that police and intelligence agencies try to track down political opposition (especially where it has been driven underground by repression), and are not beyond applying physical torture to root out the whole support network of such opposition. THIS is where torture becomes a standard. Is this not what happened in the French attempt to suppress the Algerian revolution? Or, more apropos of Dershowitz’s desire to have the same position on torture both here and in Israel, isn’t this what goes on in all too many countries today from Turkey to Latin America?
Dershowitz presents the classical example of “the ends justify the means” ideology. He argues for it, as he did at the 92nd Street Y, by trying to personalize the issue. He asks the audience rhetorically, what if it was YOUR family being held hostage and threatened with death? The point that is obfuscated here is that our means must indeed be consistent with our ends, and that there are principles that must be upheld in society as a whole that transcend the interests of anyone’s particular family. Otherwise, anything can be justified on the scales of narrow self-interest, and we are on a slippery slope from which there may be no recovery. What is to come next, “concentration camp warrants” so that in “an open and democratic society” that we know who is being thrown in the camps and why, and who is accountable?
Finally, Dershowitz’s legal argument is particularly weak. Grants of immunity are the mechanism by which grand juries were transformed from being institutions to protect people from arbitrary prosecution into instruments of secret inquisition by District Attorneys. We have seen a steady erosion of legal rights in the current period. The USA-Patriot Act expressly seeks to extend the extra-legal methods first authorized in the Foreign Intelligence Surveillance Act into the realm of everyday criminal prosecution. In this climate, the task of law professors needs to be that of standing guard at the gate, not opening the doors to inhumane methods.
One point that Dershowitz refused to address is the fact that the U.S. is a signatory to the International Convention Against Torture. This international treaty commits the United States to “take effective legislative, administrative, judicial and other measures to prevent acts of torture in any territory under its jurisdiction.” The treaty goes on to specify: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.”
In an attempt to take the house by storm in his January 27 appearance, Deshowitz suddenly called for the house lights to be brought up and demanded to know if there was anyone present who would justify letting hundreds die rather than apply some torture to a single individual. This writer waved his hand to be called on, but Floyd Abrams adroitly moved to prevent any opposition from being heard. He asked instead for a show of hands on how many supported Mr. Dershowtiz’s proposal. More than two-thirds of the house raised their hands. It took calls from the audience to get a showing of those opposed, and when a hundred or more signified their opposition to legalized torture, Dershowitz was positively outraged: “How could you!?” he cried.
In the rest of the program Dershowitz went on to expound on his call for a national ID card and reminisced some about his more famous cases. But unfortunately Dershowitz has yet to receive the rebuke that he has coming from the legal community. Even Floyd Abrams fumbled in dealing with Detshowitz’s outrageous proposal that evening. While opposing the idea of “torture warrants,” Abrams accepted the inevitability of physical coercion of certain prisoners, but said that he preferred not to know about it. This led Dershowitz, with some justification, to call him a hypocrite -- one who wants to have his torture but still appear in public with clean hands.
I left that evening, keeping my own hands in my pockets, my fingernails a safe distance from Alan Dershowitz.