A New Inquisition? Jude Wanniski May 4, 2004

Memo To: Alan Dershowitz
From: Jude Wanniski
Re: Are You Out of Your Mind??

Alan, I had heard amidst the background noise that you were defending the abuse of Iraqi prisoners on the grounds that a little torture would save American lives. How nice that you say this should all be officially sanctioned by the government because it is reasonable. Then I caught you on CNN's "Crossfire" tonight and found you essentially defending the use of torture against Iraqi detainees, who have not had any legal rights in their detention. You did so on the grounds that torture is widespread in the Middle East and the Arabs are now being "hypocritical" in weeping and wailing about abuse.

You know I have a great deal of respect for you as a criminal defense attorney, Alan. We worked together briefly defending Michael Milken, who happens to be Jewish, against the unjust charges made against him that resulted in his imprisonment. But for goodness sakes, I've not heard any Islamic head of state condemn the United States for permitting the abuse/torture of Iraqis. The condemnation has come from the Arab Street, which does uniformly believe our country has been waging war on them for more than a decade and have been responsible for the deaths of hundreds of thousands of Iraqi civilians, and down the road, of a great number of Arab Palestinians.

Do you see what I mean? The neo-con architects of the pre-emptive war on Iraq have argued that there is no "MORAL EQUIVALENCE" between the United States and Iraq, because we are inherently MORE MORAL and "they" less, because we are "democratic" and they are not. Don't you see that ordinary people on the Arab Street can now throw this back in our face -- and not be hypocritical? I'm thoroughly sympathetic with our fighting forces who are being asked to die for a stupid, unnecessary pre-emptive war. Your willingness to defend torture makes you the man on the margin. It is I think an untenable position, a shameful one.

Here is a piece I see you wrote a year ago for an Australian newspaper. It is of course an extension of your defense of Israel, which has long rationalized the suspension of human rights for national security reasons.

 
The public must know if torture is used
Australia's The Age

March 14 2003
By Alan Dershowitz

No sooner had the United States Government announced the capture of Khalid Sheikh Mohammed, the operational head of al-Qaeda, then the great international debate commenced: If nothing else works, should he be tortured to secure information that could prevent impending terrorist acts, like the ones committed on September 11, 2001?

It was the question of the day on several cable networks and the subject of the day for talk and news shows around the world. Three core positions have emerged. The purist position is that torture should never be employed, even if thousands of lives could be saved by applying non-lethal temporary pain to an admitted terrorist. The hypocritical position is that torture should be employed, but hidden from view and publicly denied. The accountability position is that torture should only be allowed if it is expressly and publicly approved by a high-ranking government official, such as the president, the Secretary of Defence or a justice of the Supreme Court.

No democracy has ever, or would ever, actually live by the purist position. If any democracy ever encountered an actual ticking-bomb-terrorist case - the capture of a terrorist who knows precisely where and when his colleague is about to detonate a nuclear device - torture would, in fact, be used as a last resort. The real question, therefore, is whether it is worse for that torture to be conducted in secret and then publicly denied, as the French did in Algeria, or whether it is worse for the US Government to acknowledge that it is making an exception to the general prohibition against torture in this case. There is no good, realistic, third alternative. This is a classic choice of evils.

There are compelling arguments on both sides of this issue. The way of the hypocrite - the French way - allows the government to obtain the needed information without publicly compromising its principles, or its treaty obligations. But secret torture is more difficult to control. It can easily move from the ticking mega-bomb scenario to the kidnapping of one child scenario, as it recently did in Germany. The way of public accountability will encourage the drawing of lines, but it will also establish a dangerous precedent and openly acknowledge that no rules are absolute.

The interrogation of Khalid Sheikh Mohammed may prove to be a testing case. It is not quite a ticking bomb situation - at least as far as we know - but it may be close to it. Mohammed may well know about impending terrorist attacks that he helped to plan and that he could now help to prevent. But we may not be able to establish this to a certainty, without first torturing him.

It's a chicken-egg problem. It is possible, of course, that his computer records may contain sufficient information to support the conclusion that he knows of impending attacks. Even if he were to provide information under torture, it is certainly possible that it would be false information, since torture victims will say anything to stop the pain. This problem has been avoided in the past, by stopping the torture only if the information is self-proving - that is, if the suspect can lead the investigators to the other terrorists or the ticking bomb itself.

The United States has, in the past, subcontracted the security services of other countries to do the dirty work of torturing terrorists. The Philippines, Jordan and Egypt have become expert at eliciting information through torture. Jordan has even tortured relatives of terrorists to loosen tongues.

It would be hypocritical to the extreme to maintain America's own clean hands by turning Mohammed over to countries that are known to dirty their own hands in secret. Moreover, such a subterfuge would violate the Geneva Convention against all forms of torture. If the US Government concludes that torturing Mohammed is necessary for the protection of lives, it should add a reservation to its treaty obligation with regard to torture. It should publicly announce that it considers it necessary to torture guilty terrorists in order to prevent a ticking bomb from killing many people. It should also set up a process, akin to securing a search warrant, for obtaining authority to apply non-lethal torture to a particular suspect, based on a high level of proof that he is a ticking bomb terrorist. If a democracy is unwilling to legalise limited torture in special circumstances, it should not engage in it.

How the United States decides to treat Khalid Sheikh Mohammed, a terrorist who elicits little sympathy because of his admitted complicity in so many brutal murders, will reveal a great deal about who we really are.

Alan Dershowitz is a professor of law at Harvard Law School. His latest book is Why Terrorism Works.

This story was found at: http://www.theage.com.au/articles/2003/03/14/1047583707482.html