[IP] Why America's top liberal lawyer wants to legalise torture
Begin forwarded message:
From: Chris Hodge <hodge@xxxxxxxxxxxxxxx>
Date: May 24, 2004 11:40:56 AM EDT
To: Dave Farber <dave@xxxxxxxxxx>, chrishodge@xxxxxxxxxxxxx
Subject: Why America's top liberal lawyer wants to legalise torture
>From the May 22 Scotsman:
Why America's top liberal lawyer wants to legalise torture
JAMES SILVER
THE grisly revelations of torture and human rights abuses by American
forces in Iraq have come as no surprise to Alan Dershowitz, the most
famous civil liberties and criminal defence attorney in the United States.
A year ago, he said American personnel were torturing suspected terrorists
in Guantanamo Bay, Bagram air base in Afghanistan and the US itself.
Now, he says: "Of course it would be best if we didn't use torture at all,
but if the United States is going to continue to torture people, we need
to make the process legal and accountable."
Although he has never been one to shy away from an intellectual punch-up,
Mr Dershowitz's proposal that torture should be "legalised" in the ongoing
war on terrorism has earned him opprobrium from critics on both sides of
the Atlantic. What, they ask, is one of America' s most high-profile
liberals doing effectively advocating the use of torture?
"I'm personally opposed to torture because I think the slippery slope is
too steep and too dangerous," says the Harvard law professor.
"But I'm also a realist. Torture is occurring as we speak in the United
States of America and abroad. We are not torturing people to death. We are
not torturing them promiscuously. But we are torturing. And it's happening
because we think we can save lives by doing it."
He continues: "If you accept that premise, the debate becomes a very
different one. Is it worse to do it secretly with deniability as we
re doing it today, or to create a legal system where you have to go to a
judge ... where you have to make a judge get down into the dirt and sign a
warrant authorising torture with accountability? My own belief is that in
a democracy, accountability is always better."
What form might the torture he proposes take? His bespectacled, owlish
face stiffens into a frown. "Torture is a continuum and the two extremes
are on the one hand torturing someone to death - that is torturing an
enemy to death so that others will know that if you are caught, you will
be caused excruciating pain - that's torture as a deterrent," he says
without pausing for breath.
"At the other extreme, there's non-lethal torture which leaves only
psychological scars. The perfect example of this is a sterilised needle
inserted under the fingernail, causing unbearable pain but no possible
long-term damage. These are very different phenomena. What they have in
common of course is that they allow the government physically to come into
contact with you in order to produce pain. And that's a barrier we should
not go over lightly."
Mr Dershowitz, whose clients as a criminal defence attorney have included
OJ Simpson and Louise Woodward, argues that torture is justified in the
case of a "ticking-bomb terrorist", namely, to force a captured terrorist
who is withholding critical information to disclose the location of a bomb
that would otherwise kill or maim many people.
"If you had a situation where a thousand lives were at stake and we could
prevent those lives being lost by causing pain to a clear, admitted
terrorist, is that morally wrong? I'm saying that decision has to be made
by a judge, by the attorney general or by the president himself. In other
words, by someone with visibility and accountability, not some murky,
low-level secret service or CIA agent without a name."
Mr Dershowitz cites a recent kidnapping case in Germany in which the son
of a distinguished financier was kidnapped and the police were given the
authority to torture the kidnapper in order to coerce him to disclose the
whereabouts of the boy. Once the kidnapper found out that torture had been
authorised, he immediately came clean. Tragically, the police arrived to
find that the boy had died.
"If you present most people around the world with a case like that,
whether they are civil libertarians or not, they will say go ahead and
torture," Mr Dershowitz claims. "But if you then move it to the next
level, and for example, the terrorist is resisting torture, do you then do
what [the authorities in] Jordan did in a case in the 1980s, namely call
in his mother and child? Do you then begin to torture other people in the
family - innocent people? Most Americans, when asked that question, draw
the line at torturing the innocent relative."
Mr Dershowitz says he came across the idea for "torture warrants" while
reading about 16th and 17th century England and France. While the French
were torturing "virtually everybody", the English Privy Council instituted
on warrants. This led to about 100 people being tortured over the course
of a century.
He describes the English system as "under centralised control
more visible and thus more subject to public accountability" than the
French, which meant that "the English were able to eliminate torture much
more quickly".
He attempts to make a distinction between so-called "torture-lite" and
"genuine" torture. "Some of the techniques we are using in Guant
namo and Iraq, as we've seen, I think are torture. But the United States
supreme court has said that you can lie to suspects - you can make them
think you are going to do things you would never do - and that's not
torture. Torture is a very powerful, emotive word. We should probably
reserve it for the most extreme forms rather than these other more
marginal forms of conduct."
However, the UN Convention against Torture makes no such distinction.
Article One defines the term as "any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third person
information or a confession." Similarly, international law affirms the
right of every person not to be subjected to "cruel, inhuman or degrading
treatment".
The adoption of Mr Dershowitz's "torture warrants" would necessitate the
US opting out of the treaties to which it is a signatory.
"Many of the countries who are signatories to the various conventions
routinely torture," he declares. "Egypt, Jordan and the Philippines are
signatories - we know those countries torture.
"How do we know? Because the United States sends our detainees to those
countries to have them tortured. Hypocrisy is prevailing today. My
suggestion is that if the United States were to authorise torture, we
would have to write a letter to the various signatory organisations saying
we reserve the right under the convention to exclude the following from
the definition of torture and then we'd list our exceptions.
"People say 'Oh my God, that will open the floodgates'. I say the reverse
is true. I believe that would close the floodgates. My view is that
accountability - with records of each warrant granted - will reduce the
amount of torture rather than increase it."
Alan Dershowitz, born in Brooklyn in 1938, went to Yale Law School and
was appointed to the Harvard Law faculty at 25. He became the youngest
professor in the school's history three years later.
He defended Claus von Bulow, convicted in 1982 of attempting to murder
multi-millionaire wife, Sunny, by injecting her with insulin. Helped by
Harvard law students, Mr Dershowitz got the conviction overturned and von
Bulow was acquitted in a retrial. The story was made into a Hollywood
film, Reversal of Fortune. His latest book, The Case for Israel, is
published by John Wiley & Sons.
This article:
http://news.scotsman.com/topics.cfm?tid=404&id=582662004