In the debate over “torture,” the assumption is often made that opponents of “torture” have the law on their side. This, however, grossly oversimplifies the legal complexities and fluidities of the issue.
In addition, the assumption is also made that liberals oppose “torture” while right-wing Christians support it. This also flattens the ideological landscape.
Here’s part of a book review in which Richard Posner, who’s one of the leading jurists of our generation, interacting with the arguments of a Harvard law prof. Both men are center-left. And both men are Jewish.
In the rest of his book Dershowitz deals with ways of eliminating terrorism (other than by giving in to it). He considers the range of options open to what he calls an "amoral" society, but which is more accurately described as a society that operates without the limitations that democracy and civil liberties place on the use of force against its internal enemies — ordinary criminals and would-be revolutionaries. The qualification implicit in "internal" is important. In wartime, a liberal democracy treats its enemies with the same lack of consideration with which its enemies treat it. It follows either that war, even when defensive, is "amoral," or, more plausibly, that the morality of war is different from the morality of ordinary policing. But what Dershowitz really means is simply that a totalitarian regime would fight the particular kind of war that we are fighting more ruthlessly than we are fighting it, and therefore more effectively. For a liberal democracy may not be ideally qualified to fight this war. It is a war in which most of the fighting is against secret enemies within rather than against uniformed enemies without, and the most effective way of fighting secret enemies inside your own country involves the wholesale suspension of civil liberties.
Dershowitz devotes one of his chapters to a specific issue of the war against terrorism: namely, whether torture should be permitted to be used to extract information from suspected terrorists. He makes a point that only the most doctrinaire civil libertarians (not that there aren't plenty of them) deny: if the stakes are high enough, torture is permissible. No one who doubts that this is the case should be in a position of responsibility. If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used — and will be used — to obtain the information. Dershowitz gives the telling example of Philippine authorities who in 1995 "tortured a terrorist into disclosing information that may have foiled plots to assassinate the pope and to crash eleven commercial airliners carrying approximately four thousand passengers into the Pacific Ocean." He cites a federal court opinion that approved a police officer's choking a kidnapping suspect until the suspect revealed where the kidnap victim was. And he asks: "What moral principle could justify the death penalty for past individual murders and at the same time condemn nonlethal torture to prevent future mass murders?"
But it is typical of Dershowitz's lack of restraint that he should think it appropriate to reveal to his readers that his preferred form of "nonlethal torture" is inserting a sterilized needle under the suspect's fingernails. One might have expected that before recommending the infliction of physical pain Dershowitz would have explored the adequacy of truth serums, bright lights (the old "third degree"), and sleep deprivation — a combination, moreover, more aptly described as coercion than as torture. Maybe he has explored these alternatives and found them wanting, but there is no discussion of this question in the book. Instead he moves directly to a method that many will see (quite properly) as tinged with sadism. Moreover, it is unlikely that a single method of forcibly extracting information would be optimal in all cases. Some people may be less susceptible to physical pain than to other forms of inducement or coercion.
Dershowitz believes that the occasions for the use of torture should be regularized — by requiring a judicial warrant for the needle treatment, for example. But he overlooks an argument for leaving such things to executive discretion. If rules are promulgated permitting torture in defined circumstances, some officials are bound to want to explore the outer bounds of the rules. Having been regularized, the practice will become regular. Better to leave in place the formal and customary prohibitions, but with the understanding that they will not be enforced in extreme circumstances. Abraham Lincoln suspended habeas corpus during the early months of the Civil War. The Constitution almost certainly does not authorize the president to suspend habeas corpus. Lincoln did it anyway, and (as William Galston has argued recently) he was probably right to do so: the Union was in desperate straits and its survival was more important than complying with a provision of the Constitution. (Dershowitz criticizes the suspension in passing, but he does not consider the arguments for it.) But it does not follow from the practical wisdom of Lincoln's action that the Constitution should be amended actually to authorize the president to suspend habeas corpus. For a president might be inclined to test the scope of such authority. Similarly, it is not necessary to enact a statute authorizing torture — a statute that, as Dershowitz argues, might well be deemed constitutional, provided no effort was made to introduce confessions obtained by torture in judicial proceedings against the person tortured.
Dershowitz's discussion of torture, and the final essay in which he outlines other measures for fighting international terrorism, are animated by a recognition of the fact — again, a fact obvious to everyone except the doctrinaire civil libertarian — that the scope of our civil liberties is not graven in stone, but instead represents the point of balance between public safety and personal liberty. The balance is struck by the courts, interpreting the vague provisions of the Constitution that protect personal liberty; and it is constantly being re-struck as perceptions about safety and liberty change. The more endangered public safety is thought to be, the more the balance swings against civil liberties. That is how it is and that is how it should be; and it is good that so committed a defender of criminal rights as Dershowitz should state this in forthright and unapologetic terms. Terrorists are more dangerous than ordinary criminals, and so, as he points out, the dogma that it is better for ten guilty people to go free than for one innocent person to be convicted may not hold when the guilty ten are international terrorists seeking to obtain weapons of mass destruction. American history and legal practice show that the law can distinguish sensibly between different levels of threat to public safety. American history and legal practice also show that curtailments of civil liberties to meet national emergencies are temporary, ceasing when the emergency ceases. We do not know when the current threat will abate, but it is unduly pessimistic to suppose it never will.
Another silly dogma that Dershowitz rightly rejects is that collective punishment is never proper. He argues that people who cheer on or otherwise support terrorism, while not as culpable as the terrorists themselves, are sufficiently culpable to be appropriate targets of at least economic punishments. These are actually rather tepid examples of collective punishment; they sound more like accomplice liability. The classical notion of collective punishment punishes the innocent who are in a good position to control the guilty. Collective punishment so defined (as distinct from punishment visited upon an entire people or class for the deeds of some members that the other members could not reasonably be expected to prevent) is not alien to our system. An employer is liable for negligent injuries inflicted by his employees within the scope of their employment even if he was not negligent himself.
Dershowitz is scornful of the privacy fetish that prevented the FBI from checking the gun-purchase records of aliens detained in the wake of the September 11 attacks and that makes civil libertarians shudder at the very idea of a foolproof national identity card, even though, as he points out, it would reduce the need for ethnic profiling, that is, for the use of ethnicity as a proxy for likely criminality. He introduces the useful phrase (for which he credits Harvey Silverglate) the "feel of freedom" to guide the re-balancing that is required in the wake of the September 11 attacks and of all we have learned since about the terrorist threat. He argues that if our civil liberties are so far restricted that Americans no longer have the "feel of freedom" — no longer feel that they live in a basically free country — then we will have paid an enormous and probably an inordinate price for what are bound to be merely incremental and uncertain increases in our sense of safety. But as he points out, Israelis — or at least Israeli Jews, though he claims, rather unconvincingly, Israeli Arabs as well — still have the "feel of freedom" even though civil liberties are more limited in Israel than in the United States.