The case for torture warrants
The opinions expressed are his own.
Rational discussion of this and other questions relating to torture proved difficult, because the issues are so emotional. Indeed, to many absolutists, the very idea of a “rational” discussion of torture is an oxymoron. To them, the issue is simple and clear-cut: torture should never be employed or even considered, because it never works; it is incompatible with democratic values; it is barbaric; it will always lead to more barbaric practices; it is worse than any evils it may prevent; it will provoke even more terrorism; it strips any democracy employing it of the moral standing to object to human rights violations by other nations or groups; and it unleashes the “law of unintended consequences.”
Most of these arguments are empirical in nature and may be true or false as matters of fact. But there is one fact that is indisputably true, has always been true, and, in my view, will always be true. That fact is that every democracy confronted with a genuine choice of evils between allowing many of its citizens to be killed by terrorists, or employing some forms of torture to prevent such multiple deaths, will opt for the use of torture. This, too, is an empirical claim, and I am entirely confident that it is true as a matter of fact.
Although the current administration, unlike its predecessor, has announced that it would never torture suspected terrorists, it has also resisted any judicial review of its counterterrorism measures. “Trust us,” but don’t ask us to justify that trust! Such an approach might be acceptable if men were angels, but no administration is run by angels. That is why visibility and accountability are essential to democratic governance. Neither is this an issue that divides along party lines. President Clinton implicitly acknowledged on National Public Radio that he would have used torture in an extreme case:
We have a system of laws here where nobody should be above the law, and you don’t need blanket advance approval for blanket torture. They can draw a statute much more narrowly, which would permit the President to make a finding in a [ticking bomb] case like I just outlined, and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court.
Clinton was then asked whether he was saying there “would be more responsibility afterward for what was done.” He replied: “Yeah, well, the President could take personal responsibility for it. But you do it on a case-by-case basis, and there’d be some review of it.” He summarized his views in the following terms:
If they really believe the time comes when the only way they can get a reliable piece of information is to beat it out of someone or put a drug in their body to talk it out of’em, then they can present it to the Foreign Intelligence Court, or some other court, just under the same circumstances we do with wiretaps. Post facto . . . But I think if you go around passing laws that legitimize a violation of the Geneva Convention and institutionalize what happened at Abu Ghraib or Guantánamo, we’re gonna be in real trouble.
Although I do not know what President Obama would say, I do know what his administration would do if faced with a real ticking bomb situation. No President would want to be responsible for the deaths of thousands of innocent citizens if he could have prevented these deaths by authorizing the use of nonlethal torture against a guilty terrorist. If I am correct, then it is important to consider the following: if the use of torture is imminent, is it worse to close our eyes and tolerate it by low-level law enforcement officials without accountability, or instead bring it to the surface by requiring a warrant for it as a precondition to its infliction? The question is not whether some torture would or would not be used in the ticking bomb case—it surely would. The dilemma is whether it would be done openly, pursuant to a previously established legal procedure, or whether it would be done secretly, in violation of existing law. This is the important policy issue about which I have tried to begin a debate: how should a democracy make difficult choice-of-evil decisions in situations for which there is no good resolution?
Several important values are pitted against each other. The first is the safety and security of a nation’s citizens. Under the ticking bomb scenario, this value may necessitate the use of torture, if torture is the only way to prevent the bomb from killing large numbers of civilians. The second value is the preservation of civil liberties and human rights. This value requires that we reject torture as an illegitimate part of our legal system. In my debates with two prominent civil libertarians, Floyd Abrams and Harvey Silverglate, both have acknowledged that they would want nonlethal torture to be used if it could prevent thousands of deaths, but they did not want torture to be officially recognized by our legal system. As Abrams put it: “In a democracy sometimes it is necessary to do things off the books and below the radar screen.”
Abrams’ approach illustrates a conflict with the third important democratic value: open accountability and visibility. “Off the books actions below the radar screen” are antithetical to the theory and practice of democracy. Citizens cannot approve or disapprove of governmental actions of which they are unaware. Experience has shown that off-the-books actions can produce terrible consequences. Richard Nixon’s creation of a group of “plumbers” led to Watergate, and Ronald Reagan’s authorization of off-the-books foreign policy in Central America led to the Iran-Contra scandal.
Only in a democracy committed to civil liberties would a triangular conflict of this kind exist. Totalitarian and authoritarian regimes experience no such conflict, because they subscribe to neither the civil libertarian nor the democratic values that come in conflict with the value of security. The hard question is: which value is to be preferred when an inevitable clash occurs? If we do not torture, we compromise the security and safety of our citizens. If we tolerate torture, but keep it off the books and below the radar screen, we compromise principles of democratic accountability. If we create a legal structure for limiting and controlling torture, we compromise our principled opposition to torture in all circumstances and create a potentially dangerous and expandable situation.
In 1678, François de La Rochefoucauld wrote, “hypocrisy is the homage that vice renders to virtue.” In this case we have two vices: terrorism and torture. We also have two virtues: civil liberties and democratic accountability. Most civil libertarians I know prefer hypocrisy, precisely because it appears to avoid the conflict between security and civil liberties. But by choosing the way of the hypocrite, these civil libertarians compromise the value of democratic accountability. Such is the nature of tragic choices in a complex world. As Bentham put it more than two centuries ago: “Government throughout is but a choice of evils.” In a democracy, such choices must be made, whenever possible, with openness and democratic accountability, and subject to the rule of law.
The moral dilemma posed by torture can be ignored only if we assume, as some do, that torture never works. I have been criticized for raising a red herring since it is “well known” that torture does not work. The tragic reality is that torture sometimes works, though many people wish it did not. There are numerous instances in which torture has produced self-proving, truthful information that was necessary to prevent harm to civilians.
The Washington Post has recounted a case from 1995 in which Philippine authorities tortured a terrorist into disclosing information that may have foiled plots to assassinate the Pope, crash eleven commercial airliners into the Pacific Ocean, and fly a private Cessna filled with explosives into CIA headquarters. For sixty-seven days, intelligence agents beat the suspect “with a chair and a long piece of wood [breaking most of his ribs], forced water into his mouth, and crushed lighted cigarettes into his private parts.” After successfully employing this procedure, they turned him over to American authorities, along with the lifesaving information they had beaten out of him. And following the killing of Osama bin Laden, CIA officials claimed that valuable information elicited by waterboarding helped in locating the world’s most wanted terrorist. It is impossible to avoid the difficult moral dilemma of choosing among evils by denying the empirical reality that torture sometimes works, even if it does not always work. No technique of crime prevention always works.
The goal of the torture warrant proposal is to reduce the use of torture to the smallest amount and degree possible, while creating public accountability for its rare use. I see it not as a compromise with civil liberties but rather as an effort to maximize civil liberties in the face of the realistic likelihood that torture does and will, in fact, take place below the radar screen of accountability.
It seems to me logical that a formal, visible, accountable, and centralized system is somewhat easier to control than an ad hoc, off-the-books, and under-the-radar-screen non-system. I believe, though I certainly cannot prove, that a formal requirement of a judicial warrant as a prerequisite to nonlethal torture would decrease the amount of physical violence directed against suspects. At the most obvious level, a double check is always more protective than a single check. In every instance in which a warrant is requested, a field officer has already decided that torture is justified; in the absence of a warrant requirement, the officer would simply have proceeded to implement torture. Requiring that decision to be approved by a judicial officer will result in fewer instances of torture even if the judges rarely turn down a request.
Moreover, I believe that most judges would require compelling evidence before they would authorize so extraordinary a departure from our constitutional norms. A record would be kept of every warrant granted, and although it is certainly possible that some individual agents might torture without a warrant, they would have no excuse, since a warrant procedure would be available. They could not claim “necessity,” because the decision as to whether the torture is indeed necessary has been taken out of their hands and placed in the hands of a judge. In addition, even if torture were deemed totally illegal without any exception, it would still occur, though the public would be less aware of its existence.
I also believe that the rights of the suspect would be better protected with a warrant requirement. He would be granted immunity, told that he was now compelled to testify, threatened with imprisonment, and given the option of providing the requested information. Only if he refused to do what he was legally compelled to do—provide necessary information, which could not incriminate him because of the immunity—would he be threatened with torture. Knowing that such a threat was authorized by the law, he might well provide the information. If he still refused, he would be subjected to judicially monitored physical measures designed to cause excruciating pain without leaving any lasting damage.
Of course, there is something different about torture that makes us loath to bring torture within the oversight of our judicial officers. In addition to the horrible history associated with torture, there is also the aesthetic of torture: the very idea of deliberately subjecting a captive human being to excruciating pain violates our sense of acceptable conduct. Yet what moral principle could justify the death penalty for past individual murders, while condemning nonlethal torture to prevent future mass murders? Bentham posed this rhetorical question as support for his argument regarding torture. In the United States we execute convicted murderers, despite compelling evidence of the unfairness and ineffectiveness of capital punishment. Yet many who support capital punishment recoil at the prospect of shoving a sterilized needle under the finger of a suspect who is refusing to divulge information that might prevent multiple deaths.
In our modern age, the death penalty is underrated, while pain is overrated. That we put the prisoner “to sleep” by injecting a lethal substance into his body covers up that death is forever while nonlethal pain is temporary. Despite the irrationality of these distinctions, they are understandable. But in the end, the absolute opposition to torture may rest more on historical and aesthetic considerations than on moral or logical considerations.
We cannot have a “don’t ask, don’t tell” policy on torture that enables our President and attorney general to close their eyes to uses of torture while simultaneously denying torture categorically— the kind of willful blindness condemned by the courts in other contexts. With no limitations, standards, principles, or accountability, the use of torture techniques will expand.
Torture, like any other topic, deserves a vigorous debate in a democracy such as ours. Even if government officials decline to discuss such issues, academics and advocacy groups have a duty to raise them and submit them to the marketplace of ideas. There may be danger in open discussion, but there is far greater danger in actions based on secret discussion. What is a quintessentially democratic problem requires a quintessentially democratic response. In short, it is not inconsistent to be opposed to torture and yet in favor of a torture warrant. Democratic accountability for torture is not an oxymoron.
This post has been excerpted with permission from the new book Confronting Terror: 9/11 and the Future of American National Security (Encounter), edited by Dean Reuter and John Yoo. Excerpt copyright 2011, Alan Dershowitz.
Photo: A Pakistani girl holds a photograph showing U.S. soldier smiling beside the body of an Iraqi prisoner during a protest of the Citizens Peace Committee, a Non Goverment Organisation (NGO) in Islamabad on May 26, 2004. [The demonstration was held to condemn U.S. military abuse of Iraqi prisoners at Abu Ghraib prison in Baghdad.] REUTERS/Mian Kursheed