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Alan Dershowitz Wants To Legalize Torture

by JAMES SILVER Saturday, May. 22, 2004 at 10:45 PM

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.

Sat 22 May 2004

Why America's top liberal lawyer wants to legalise torture


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 Guantánamo 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 Guantánamo 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.

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