Making the Case for Torture

Harvard law professor Alan Dershowitz tries to make the case that torture is acceptable in Why Terrorism Works: Understanding the Threat, Responding to the Challenge.

In Salon.com, he defends his notion that single nail extraction can save America in a ticking bomb scenerio.

Probably the most controversial chapter in your book is about torture. A lot of people will be surprised to learn that in certain situations you believe that nonlethal torture might be necessary.

It might be necessary. I hope it isn't necessary. But if we ever had the ticking bomb case -- somebody who we believed had plans with others who were out free to blow up a major city or plant a nuclear bomb -- there's no question that the Americans would do everything they have to do to prevent it.

Any reason why you use needles under the fingernails as your torture method of choice?

A reviewer criticized me for that. I purposely wanted to do that. I don't want to be vague. I wanted to come up with a tactic that can't possibly cause permanent physical harm but is excruciatingly painful. I agree with the reviewer; he's right when he said, "different strokes for different folks." For different people, different kinds of nonlethal torture might be more effective. Obviously, to the experts, having seen the movie "Marathon Man," drilling the tooth might be better than some. But the point I wanted to make is that torture is not being used as a way of producing death. It's been used as a way of simply causing excruciating pain.

Aren't there other forms of torture that would be less painful than that, that you might have considered?

But I want more painful. I want maximal pain, minimum lethality. You don't want it to be permanent, you don't want someone to be walking with a limp, but you want to cause the most excruciating, intense, immediate pain. Now, I didn't want to write about testicles, but that's what a lot of people use. I also wanted to be explicit because I didn't want to be squeamish about it. People have asked me whether I would do the torturing and my answer is, yes, I would if I thought it could save a city from being blown up.

But you believe in torture only for the ticking bomb terrorist scenario?

Only for the ticking bomb terrorist -- if the threat is immediate, clear and mega.

And you're advocating that we have warrants for this?

Some accountability. It needn't be a warrant. It can be judicial or legislative. Something that brings it up and makes sure that the American public sees how it works. It's not just done beneath the radar screen.

Regardless, there's a serious slippery slope here.

The slippery slope is that you're making a statement that there's no absolute right not to be tortured. My whole life has been devoted to trying to prove to my civil libertarian absolutist friends that there is no such thing as absolute rights, at all, period. I don't believe that there's any right that's absolute. Torture has always been used hypothetically as the example to prove it; [the legal theorist] Jeremy Bentham was the first to make that argument in the late 18th century, arguing that if you need to use torture to stop torture, it would be permissible.

I'll put aside the moral arguments that torture is unacceptable. There are practical reasons why we should never torture, even in a doomsday scenerio that Dershowitz envisions.

First, torture doesn't produce reliable information. We can prove this by working over this ivory tower theoretician and his pudgy comrade in arms John Yoo with metallic devices that are found in any office. In no time, they will be squealing allegiance to any number of treasons. But the question still remains: Is anything they said true? Conversely, there are people who will never break no matter how much torture is inflicted.

There must be ways to get information without violating a person's human rights, especially when that person may be innocent. Isn't that the point of trial by jury?

Secondly, the use of torture invites retaliation-- enemy torture to captured US civilians and soldiers.

Thirdly, our use of torture acts as a recruiter for more terrorists by radicalizing those who may be on-the-fence.

Finally, how can we trust anyone to show restraint in who is to be selected to be tortured and the torture that is the be inflicted?

The use of violence to extract what might seem like important information may be psychologically satisfying. But, as a practical matter, it can cause more harm than good and may even cause no good at all.

Good and evil is a state of mind and nothing more or less.

Are the effects of good and evil-- from rain drops on roses to the holocaust-- a state of mind and nothing else? If so, that would take solipsism to another level-- that all reality is subjective with the exception of my own mind. May I suggest that good and evil are not states of mind but states of behavior, and that we can calibrate almost with mathematical exactitude that morality with reference to our own humanity-- that we with all other humans share commonalities, such as parents, lifespans, blood, and bones. None of this are states of mind. And, if they are real, we must infer that the consequences of acting on human in certain ways that are either desirable or undesirable are also real.