Among the unsettling effects of the September 11 terrorist attacks on New York
and Washington and the anthrax mailings that followed is their triggering,
seemingly overnight, of a national debate over whether the United States should
practice torture -- as a matter of national policy -- to combat terrorism. The
pro-torture camp wants to authorize law-enforcement agents to inflict intense
physical pain in order to extract information from suspected terrorists (the
word "suspected" is often conveniently omitted by the law's proponents) where
that information might pinpoint the location of a "ticking bomb" or otherwise
avert some imminent act of mass carnage.
So imagine the surprise of many long-time legal observers when Harvard Law
professor Alan Dershowitz published an op-ed piece in the Los Angeles
Times on November 8, arguing that "if we are to have torture, it should be
authorized by the law" and that the authorities should be required to apply to
judges for "torture warrants" in each case. A careful reading of his op-ed
indicates that Dershowitz did not actually go so far as to say he favors
torture. And in subsequent lectures and interviews he placed on record his
personal opposition to torture. But the piece drew a firestorm of criticism
from both liberals and libertarians, who argued that Dershowitz had indirectly
sanctioned the use of torture and should now be regarded as a turncoat in the
battle to preserve civil liberties.
Nonetheless, Dershowitz's op-ed makes a fairly powerful, though flawed,
argument that torture would be ruled constitutional. Under the right
circumstances, he claims, torture, while "very troubling," would pass a test
the Supreme Court has sometimes used to determine the constitutionality of the
government's use of an extreme law-enforcement technique: whether it "shocks
the conscience."
"Consider a situation in which a kidnapped child had been buried in a box with
two hours of oxygen," suggests the law professor, ever the master of the
difficult hypothetical. "The kidnapper refused to disclose its location," he
continues. "Should we not consider torture in that situation?"
Dershowitz, clearly uncomfortable with his own rhetorical question, does not
quite give a direct answer. In order to avoid an ugly answer to an impossibly
difficult moral and legal question, he takes another route. Since there is "no
doubt that if an actual ticking bomb situation were to arise, our law
enforcement authorities would torture," he says, "the real debate is whether
such torture should take place outside of our legal system or within it." The
answer to this question is clear and easy for Dershowitz: "If we are to have
torture, it should be authorized by law" because "democracy requires
accountability and transparency."
Besides, Dershowitz argues, the Constitution poses no obstacle to legal,
court-authorized, supervised torture. That's because the Fifth Amendment's
protection against self-incrimination does not protect against requiring
someone to testify and disclose information; it merely protects against the use
of such information against the person interrogated. Thus, in the face of a
court-issued "immunity" order, any citizen may be forced to testify in a
judicial forum, or suffer imprisonment for the refusal to do so. Nor does
Dershowitz believe that any "right of bodily integrity" that might be read into
the Bill of Rights prohibits, say, the injection of "truth serum," since the
Supreme Court has already authorized the forcible drawing of blood from a
suspect for alcohol testing. "Certainly there can be no constitutional
distinction" he argues, "between an injection that removes a liquid and one
that injects a liquid." (This particular argument is spurious, and Dershowitz
should know better: he is a long-time opponent of the death penalty, where the
current preferred method of execution is the injection of deadly poisons into
the veins of the convict.)
Dershowitz fails to mention altogether another amendment -- the Eighth, which
states quite plainly that no "cruel or unusual punishments [shall be]
inflicted." The modern-era Supreme Court has ruled that this standard, which is
inherently subjective, must be interpreted according to society's evolving
standards of decency. It is likely that the pre-September 11 Court would have
ruled that techniques all would agree constitute "torture" would qualify as
"cruel" and (for our society, at least) "unusual." But in the atmosphere
created by the ghastly attacks of September 11, the Court might now rule that
it is neither cruel nor unusual to torture a convict, a prisoner, or even a
mere suspect, if the information that might be wrung from that person could
save thousands of innocent lives. (After all, the Supreme Court did uphold the
constitutionality of President Franklin D. Roosevelt's transfer of
Japanese-Americans from the West Coast into "relocation camps" after Pearl
Harbor, and of his using a military tribunal to try -- and execute -- German
saboteurs who landed on our shores intending to destroy strategic targets.) War
does change mindsets, even of the courts -- and understandably so.
But leaving aside his interpretation (or neglect) of inherently vague
constitutional provisions, Dershowitz's conclusion is clear: if torture is to
be administered, it should require "torture warrants" issued by judges before
whom the government must lay out reasons why torture -- and only torture --
could extract life-saving information. "Thus we would not be winking an eye of
quiet approval at torture while publicly condemning it," he says.
SOME ADVOCATES of torture justify their position on the simple ground that
monsters like those who helped level the World Trade Center deserve to be
tortured, ostensibly to get information that might prevent future catastrophic
destruction of human life. (Of course, if the pain inflicted also goes a small
way toward exacting some retribution for the WTC carnage, though the suspected
terrorist had nothing to do with September 11 but is planning an entirely new
attack, some would view it as a just bonus.) But Dershowitz is not in that
camp. He understands that in the real world, when law-enforcement authorities
have reason to believe that a suspect has information that can save lives,
individual cops and agents will resort to torture no matter what. After all, we
have long struggled to control the gratuitous use of torture by police on
suspects from whom they seek to extract confessions, and by sadistic prison
guards against inmates for no apparent practical purpose whatsoever. Can there
be any real doubt that a law-enforcement officer, or, for that matter, most of
us, would probably be willing to resort to the torture of a person who knew
where to find our kidnapped child or where to locate an atomic bomb ticking
away in some major American city?
So what, then, is wrong with a system that requires torture warrants --
especially if an opponent of torture like Dershowitz can argue for their
constitutionality? The answer is threefold.
First, institutionalizing torture will give it society's imprimatur, lending it
a degree of respectability. It will then be virtually impossible to curb not
only the increasing frequency with which warrants will be sought -- and granted
-- but also the inevitable rise in unauthorized use of torture.
Unauthorized torture will increase not only to extract life-saving information,
but also to obtain confessions (many of which will then prove false). It will
also be used to punish real or imagined infractions, or for no reason other
than human sadism. This is a genie we should not let out of the bottle.
Second, we should think twice before entirely divorcing law from morality.
There can be little doubt that until now, Americans have widely viewed torture
as beyond the pale. The US rightly criticizes foreign governments that engage
in the practice, and each year our Department of State issues a report that
classifies foreign nations on the basis of their human-rights records,
including the use of torture. Our country has signed numerous international
treaties and compacts that decry the use of torture. We tamper with that
hard-won social agreement at our grave moral peril.
Third, our nation sets an example for the rest of the world: we believe not
only in the rule of law, but in the rule of decent laws, and in a
government composed of decent men and women who are accountable to a long
tradition. There may be more efficient ways of governing, but our system is
intentionally inefficient in certain ways in order to protect liberty. Our
three co-equal branches of government immediately come to mind. Also,
government can almost always proceed more efficiently if it is not dogged by an
independent press protected by the First Amendment. But we have found from long
experience that, as Jefferson famously said, if one were forced to choose
between government without the press or the press without government, the
latter might well be preferable. Trials by jury are long, inefficient,
expensive, and sometimes lead to the acquittal of defendants whom the state is
convinced are guilty and wants very much to incarcerate or even execute. Some
of those acquitted are indeed guilty. Yet trial by jury remains the best
(albeit imperfect) system ever devised for ascertaining truth while curbing
government excess and abuse of power. Torture may sometimes offer an efficient
means of obtaining information, but efficiency should not always trump other
values.
Yet we still face Dershowitz's "ticking bomb" hypothetical. How do we deal with
that? Is it really moral, after all, to insist on having "clean hands" and to
refrain from torture, when thousands or even hundreds of thousands of people
could die as a result of our pious and self-righteous morality?
THE ANSWER to this quandary lies in a famous criminal-law decision rendered in
Victorian England by the British appeals court known as the Queen's Bench. It
is a case studied by virtually every American law student at virtually every
law school. In Regina [the Queen] v. Dudley and Stephens, the
court dealt with one of the most difficult criminal cases in English legal
history.
In July 1884, four crewmen of a wrecked English yacht were set adrift in a
lifeboat more than 1000 miles from the nearest land mass. They had no water and
no food except for two one-pound tins of turnips. Three of the men -- Dudley,
Stephens, and Brooks -- were "able-bodied English seamen," while the fourth
lifeboat passenger was an 18-year-old boy who was less robust than the others
and soon showed signs of weakening. As they drifted, severe hunger and thirst
set in. It became clear, as the trial court found, that unless the three
stronger seamen killed the boy -- who by then had deteriorated substantially
and was on the verge of dying anyway -- and then ate his body and drank his
blood, all four of them would die. "There was no appreciable chance of saving
life except by killing one for the others to eat," and the boy seemed the most
logical candidate since he was "likely" to die anyway, as the trial court put
it. Dudley and Stephens followed this course, with Brooks dissenting. Once the
boy was killed, all three partook of his flesh and blood. Four days later, the
three survivors, barely alive, were rescued by a passing ship.
The Queen's Bench was faced with the question of whether, under English law,
the three were guilty of murder, or whether the homicide was justified by a
"defense of necessity." The judges concluded that they were guilty of murder
and should be sentenced to death. "[T]he absolute divorce of law from morality
would be of fatal consequence," they wrote, "and such divorce would follow if
the temptation to murder in this case were to be held by law an absolute
defense of it." Were this bright line against murder abandoned, warned the
court, it might "be made the legal cloak for unbridled passion and atrocious
crime." The genie, in other words, would have escaped from the bottle, with
unimaginable consequences.
But since this case is a very hard one and the outcome -- the death penalty --
would strike most civilized people as excessive under the circumstances, the
judges suggested a way out of the dilemma. The judges claimed that it is left
"to the Sovereign" -- in this instance, the Queen -- "to exercise that
prerogative of mercy which the Constitution has intrusted to the hands fittest
to dispense it." In other words, executive clemency offers a way to trim the
harsh edges of the law in the truly exceptional case.
The lesson of this case for the use of torture warrants is clear. When a
law-enforcement officer truly believes that a suspect possesses life-saving
information, and commits the perfectly human act of torturing the suspect to
obtain that information, the officer should be tried for the crime of
violating the suspect's constitutional rights, or for some related crime such
as assault and battery or mayhem (willful bodily mutilation). If the jury,
acting as the conscience of the community, decides that the officer does not
deserve to be convicted and punished under the circumstances, it will acquit.
Indeed, under our system of unanimous jury verdicts in federal and most state
criminal trials, a single juror who refuses to vote for conviction can "hang"
the jury and prevent a verdict and hence a conviction. In our legal history,
there have even been instances where juries, exercising what is known as "jury
nullification," have refused to convict or have acquitted obviously guilty
defendants. Such verdicts are hardly unknown, as in cases of mercy killings or
the medical use of marijuana.
Further, even when a conviction has been handed down in a hard case, the
government's chief executive (the president of the United States or, on the
state level, usually the governor) may exercise his or her constitutional
authority to commute (or terminate) the sentence and free the defendant, or
even pardon the defendant and thereby wipe clean his or her criminal record. In
the Dudley and Stephens case, in fact, Queen Victoria commuted the
sentence to six months' imprisonment. This is how a civilized nation upholds
civic decency and the rule of law while allowing for those exceptional
situations when normal human beings break the law for some greater good or
under conditions of overwhelming necessity.
We do not need, and should not dare to enact, a system of torture warrants in
the United States. Our legal system is perfectly capable of dealing with the
exceptional hard case without enshrining the notion that it is okay to torture
a fellow human being.
Harvey Silverglate is the co-author of The Shadow University: The
Betrayal of Liberty on America's Campuses (HarperPerennial, 1998) and a
partner in the law firm of Silverglate & Good. He and Alan Dershowitz will
debate the relationship between civil liberties and security during wartime
February 12, 2002, at 6:30 p.m., at the Ford Hall Forum, in the Old South
Meeting House, in Boston. Free. For more information, log on to
www.fordhallforum. neu.edu.
Issue Date: December 13 - 19, 2001