Why Draw the Line at where We Draw the Line?

My International Law Prof posted the article below and invited response to the question, "Warming Up to Torture?"

I don't think I answered the question per se, instead my response was simply a query of why Prof Dershowitz draws the line where he draws the line.

Bill Clinton's call for court-approved 'torture warrants' hasn't drawn the same outcry as a similar proposal from a few years back.
By Alan M. Dershowitz
ALAN M. DERSHOWITZ is a professor of law at Harvard. He is the author of many books, including, most recently, "Preemption: A Knife that Cuts Both Ways."

October 17, 2006

SEVERAL YEARS AGO, I provoked a storm of controversy by advocating "torture warrants" as a way of creating accountability for the use of torture in terrorism cases. I argued that if we were ever to encounter a "ticking bomb" situation in which the authorities believed that an impending terror attack could be prevented only by torturing a captured terrorist into revealing the location of the bomb, the authorities would, in fact, employ such a tactic.

Although I personally oppose the use of torture, I recognize the reality that some forms of torture have been, are being and will continue to be used by democracies in extreme situations, regardless of what we say or what the law provides. In an effort to limit the use of torture to genuinely extreme "ticking bomb" situations, rather than allowing it to become as routine as it obviously became at Abu Ghraib, I proposed that the president or a federal judge would have to take personal responsibility for ordering its use in extraordinary situations.

For suggesting this approach to the terrible choice of evils between torture and terrorism, I was condemned as a moral monster, labeled an advocate of torture and called a Torquemada.

Now I see that former President Clinton has offered a similar proposal. In a recent interview on National Public Radio, Clinton was asked, as someone "who's been there," whether the president needs "the option of authorizing torture in an extreme case."

This is what he said in response: "Look, if the president needed an option, there's all sorts of things they can do. Let's take the best case, OK. You picked up someone you know is the No. 2 aide to Osama bin Laden. And you know they have an operation planned for the United States or some European capital in the next . three days. And you know this guy knows it. Right, that's the clearest example. And you think you can only get it out of this guy by shooting him full of some drugs or water-boarding him or otherwise working him over. If they really believed that that scenario is likely to occur, let them come forward with an alternate proposal.

"We have a system of laws here where nobody should be above the law, and you don't need blanket advance approval for blanket torture. They can draw a statute much more narrowly, which would permit the president to make a finding in a case like I just outlined, and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court."

Clinton was then asked whether he was saying there "would be more responsibility afterward for what was done." He replied: "Yeah, well, the president could take personal responsibility for it. But you do it on a case-by-case basis, and there'd be some review of it." Clinton quickly added that he doesn't know whether this ticking bomb scenario "is likely or not," but he did know that "we have erred in who was a real suspect or not."

Clinton summarized his views in the following terms: "If they really believe the time comes when the only way they can get a reliable piece of information is to beat it out of someone or put a drug in their body to talk it out of 'em, then they can present it to the Foreign Intelligence Court, or some other court, just under the same circumstances we do with wiretaps. Post facto..

"But I think if you go around passing laws that legitimize a violation of the Geneva Convention and institutionalize what happened at Abu Ghraib or Guantanamo, we're gonna be in real trouble."

It is surprising that this interview with the former president has received so little attention from those who were so quick to jump all over me. Clinton goes even further than I did. He would, in extreme cases, authorize the granting of a warrant "post facto" by a specialized court, as is now the case with national security wiretaps. What I proposed is that the warrant authorization be issued before the use of extreme measures is permitted. A preliminary warrant could be issued in a manner of minutes, to be followed up by a more thorough, after-the-fact evaluation and review.

I offered my controversial proposal as a way to stimulate debate about a difficult choice of evils. I hope that the silence following the Clinton interview does not mean the debate has ended. The problem persists. Torture will continue. Let's not stop thinking and talking about whether the evil of torture is ever a necessary evil.

My biggest difficulty is in understanding why Prof. Dershowitz draws the line where he draws it. While I have some sympathy with the position he holds, nevertheless I find the situation of which he speaks of not just unrealistic but also that his requirement of a warrant generates the same possibility of abuses than might otherwise be the case under an outright ban.

I should also state that I'm massively conflicted over this issue and do find myself viscerally supporting torture on an ad hoc basis even where I find it repugnant.

1. Likelihood of situation.

Realistically speaking, I would love to see when such a scenario would actually accrue i.e. that the government knows that there is an imminent large scale threat, that they know that this particular terrorist has the information and that they think (on what arbitrary "reasonable" grounds) that the terrorist would spill the beans with torture (undefined).

More likely and arguably more effective would be the use of torture to extract general information to determine and prevent a potential future plot, which apparently was the case with Hambali the bomb maker and helped (although it is never clear in what sense) to prevent another immediate Bali attack. If that's the standard then arguably all terrorist ought to be tortured and torture becomes routine and not the last resort anymore.

Furthermore, why should the slippery slope not work the other way? If a thousand lives (or even a hundred) are at stake, why should we preserve the sanctity of say the terrorist's immediate family? Perhaps we could torture the terrorist's wife/husband, parents or three-year old child if we honestly believe that the ends justifies the means. While I find this scenario personally repugnant, given the appropriate situation, who knows what the reasonable person would do?

If we believe that we are not simply fighting a convention war but one based on ideology as well, then torture in and of itself is massively counterproductive especially in the international setting.

2. Prevention of abuse?

Needless to say, torture happens and here I agree that unless we want to hypocritical and turn a blind eye to it, it ought to be either regulated or cracked down severely. Nevertheless torture warrants create a unique incentive not to be used.

Assuming the authorities think that torture is justified in this particular circumstance but the judge is reluctant and refuses to sanction the torture (on say the basis that the government has not established the above elements or do we assume deference to the executive?), is it more likely that given the "ticking time-bomb" situation, the rule of law would really be obeyed? Or is it more likely that the authorities would not make such a submission or simply disobey the judge?

Forcing people to make abhorrent choices surely ought not to be what a government should be doing. Banning torture outright draws a nice big bright red line that prevents even such issues from having to arise.

3. What's the definition anyway?

The definition of torture (using the definition from a federal anti-torture statute, 18 USC Sec. 2340A), "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control".

I readily concede that by a plain reading, I do wonder how extended sleep, food and water, sensory deprivation, white noise, withholding of non-essential medical aid etc. simply constitute acceptable interrogation techniques and not torture proper. Except insofar as it probably doesn't feel as bad as beatings or needles under nails.

Maybe instead of torture warrants, we ought to define (or at least interpret) what torture is (no permanent damage, scarring or maiming, and medical personnel ought to be present at all times) and leave the rest to the current system to regulate.

Although I do fear where the line will end up being drawn.