By Alan Dershowitz
The opinions expressed are his own.
One goal of terrorism directed against democracies is to provoke overreaction and repression. In the wake of the 9/11 attacks, many Americans did in fact overreact, and although the actions of the government did not approach “repression,” there were some overreactions that seemed to play into the hands of the terrorists. Perhaps the most egregious were the acts of humiliation and torture that were captured by cell phone photographs at Abu Ghraib prison. These disturbing photographs went viral throughout the world and showed the ugly face of American torture. Surprisingly, the events of 9/11 also stimulated a debate within Western democracies: Is torture ever justified in the war against terrorism?
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: