Jewish World Review Jan. 30, 2002 /17 Shevat, 5762
http://www.jewishworldreview.com --
IF AMERICAN law enforcement officers were ever to confront the law
school hypothetical case of the captured terrorist who knew about an
imminent attack but refused to provide the information necessary to
prevent it, I have absolutely no doubt that they would try to torture the
terrorists into providing the information.
Moreover, the vast majority of Americans would expect the officers to
engage in that time-tested technique for loosening tongues,
notwithstanding our unequivocal treaty obligation never to employ
torture, no matter how exigent the circumstances. The real question is
not whether torture would be used ... it would ... but whether it would be
used outside of the law or within the law.
Every democracy, including our own, has employed torture outside of
the law. Throughout the years, police officers have tortured murder and
rape suspects into confessing ... sometimes truthfully, sometimes not
truthfully.
The "third degree'' is all too common, not only on TV shows like
"NYPD Blue,'' but in the back rooms of real station houses. No
democracy, other than Israel, has ever employed torture within the law.
Until quite recently, Israel recognized the power of its security
agencies to employ what it euphemistically called "moderate physical
pressure'' to elicit information from terrorists about ongoing threats.
This "pressure'' entailed putting the suspect in dingy cell with a
smelly sack over his head and shaking him violently until he disclosed
planned terrorist attacks. It never allowed the information elicited by
these methods to be used in courts of law as confessions. But it did use
the information to prevent future terrorist acts.
Several such attacks were prevented by this unpleasant tactic. In a
courageous and controversial decision, the president of the Israeli
Supreme Court wrote a majority opinion banning the use of this tactic
against suspected terrorists.
The Israeli Supreme Court left open the possibility, however, that in
an actual "ticking bomb'' case ... a situation in which a terrorist
refused to divulge information necessary to defuse a bomb that was about
to kill hundreds of innocent civilians ... an agent who employed physical
pressure could defend himself against criminal charges by invoking "the
law of necessity.''
No such case has arisen since this decision, despite numerous
instances of terrorism in that troubled part of the world. Nor has there
ever been a ticking bomb case in this country.
But inevitably one will arise, and we should be prepared to confront
it. It is important that a decision be made in advance of an actual
ticking bomb case about how we should deal with this inevitable
situation.
In my new book, "Shouting Fire:
Civil Liberties in a Turbulent Age,''
I offer a controversial proposal designed to stimulate debate about this
difficult issue. Under my proposal, no torture would be permitted without
a "torture warrant'' being issued by a judge.
An application for a torture warrant would have to be based on the
absolute need to obtain immediate information in order to save lives
coupled with probable cause that the suspect had such information and is
unwilling to reveal it.
The suspect would be given immunity from prosecution based on
information elicited by the torture. The warrant would limit the torture
to nonlethal means, such as sterile needles, being inserted beneath the
nails to cause excruciating pain without endangering life.
It may sound absurd for a distinguished judge to be issuing a warrant
to do something so awful.
But consider the alternatives: Either police would torture below the
radar screen of accountability, or the judge who issued the warrant would
be accountable. Which would be more consistent with democratic values?
Those opposed to the idea of a torture warrant argue ... quite
reasonably ... that establishing such a precedent would legitimate torture
and make it easier to extend its permissible use beyond the ticking bomb
case.
Those who favor the warrant argue that the opposite would be true: By
expressly limiting the use of torture only to the ticking bomb case and
by requiring a highly visible judge to approve, limit, and monitor the
torture, it will be far more difficult to justify its extension to other
institutions.
The goal of the warrant would be to reduce and limit the amount of
torture that would, in fact, be used in an emergency. This is an issue
that should be discussed now, before we confront the emergency.
So, let the debate
Let America take its cues from Israel regarding torture
It's not often that we agree with the Harvard prof. And he's let us know how much he loves us, too. But in this case, his views deserve an airing on our pages.
By Alan Dershowitz
Alan Dershowitz is a Harvard law professor. His latest book is "Shouting Fire:
Civil Liberties in a Turbulent Age.'' Send your comments to him by clicking here.