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Alan Dershowitz: Only "sterile" needles can be used while conducting torture
By Mike Whitney
Created Dec 13 2007 - 7:24am
Alan Dershowitz is a skillful debater, a capable attorney, and and a
ferocious defender of Israel. He is also a Harvard professor and a former
member of OJ Simpson's legal defense called the Dream Team.
An article by Dershowitz appeared on op-ed page of the Wall Street Journal
on Novemeber 7, 2007, titled "Democrats and Waterboarding". In that article
Dershowitz makes a spirited defense of waterboarding, going so far as to say
that (he believes) the Democrats "will lose the presidential race if it
defines itself as soft on terror." Dershowitz thinks the Democrats are
headed for trouble if they assume the "pacifistic stance" that he identifies
with Cindy Sheehan and Michael Moore. By using Moore and Sheehan as
examples; it is clear that Dershowitz accepts the media's attempts to
dismiss them as part of an imaginary "leftist fringe".
Instead, Dershowitz holds up ex-New York Mayor Rudolph Giuliani as an
example of a candidate whose popularity has steadily grown because of his
"tough" stance on national security issues. Dershowitz uses the "national
security" hobgoblin in the same way as Bush; to justify government
activities that conflict with our existing laws and basic principles. It is
a neat bit of lawyerly footwork, but unconvincing.
In Dershowitz's defense, it is true that he does not approve of "the routine
use of torture", but only in the rare situation when it might be useful in
gaining " preventive intelligence information about imminent acts of
terrorism--the so-called "ticking bomb" scenario." But, who decides? Do we
bestow this authority on men who have already proven to be
untrustworthy---on men who have already created an industrial scale system
of torture in black sites around the world? Who do we trust with these new
powers?
And how do we know when a so-called "terrorist suspect" is a terrorist at
all? Are we being asked to forgo due process and the presumption of
innocence along with our revulsion to cruel and inhuman treatment?
Dershowitz's loves to use the "ticking time-bomb" scenario and trots it out
at every opportunity. It is a very persuasive argument, until one really
examines the implications. Jose Padilla was supposedly a "ticking
time-bomb",
wasn't he? According to the earliest public statements by the Bush
administration, Padilla had smuggled a nuclear device or "dirty bomb" into
the country and was planning to use it in a terrorist attack against
American civilians. But it wasn't true. The government had fabricated the
entire story and kept him in prison without charges for over 4 years on
claims that were manifestly false. The Bush administration has never offered
an explanation for their lies.
Padilla's attorney has produced convincing evidence that he was repeatedly
tortured in prison and was, thus, driven insane. And for what? The
government knew that he was not involved in a terrorist plot to kill
Americans. Under Dershowitz's regime, Padilla's treatment would be entirely
justified. Is that what we want?
The "ticking time-bomb" argument is a way of challenging our core values.
It's a test. It's like asking, "How much are we really willing to sacrifice
for the sake of our beliefs? Are we willing to risk our lives and the lives
of the people we love ?" Or are we ready to "throw in the towel" and hand
the government even greater and more lethal powers hoping that they'll keep
us safe?
Dershowitz says, "I am personally opposed to the use of torture." But that
is not true. If he is opposed to torture then how does he explain his
support for "torture warrants"? The two are mutually exclusive.
In Dershowitz's book, "Shouting Fire: Civil Liberties in a Turbulent Age,"
he says:
"No torture would be permitted without a "torture warrant" being issued by a
judge....An application for a torture warrant would have to be based on the
absolute need to obtain immediate information in order to save lives coupled
with probable cause that the suspect had such information and is unwilling
to reveal it....The warrant would limit the torture to nonlethal means, such
as sterile needles, being inserted beneath the nails to cause excruciating
pain without endangering life."
It's shocking that a respected author and attorney would actually qualify
the type of needles ("sterile") that can be used while conducting torture.
Can we see how outrageous this is?
The excerpt proves that Dershowitz advocates torture. The support for
"torture warrants" is support torture. Period. It doesn't matter if the
torture is limited to extreme cases or not. It's barbarism. More
importantly, it is barbarism that is vindicated by the state.
Dershowitz has been defending his position on torture for more than 4 years.
Here are his comments in 2002 from the op-ed page of the SF Chronicle :
"If American law enforcement officers were ever to confront the law school
hypothetical case of the captured terrorist who knew about an imminent
attack but refused to provide the information necessary to prevent it, I
have absolutely no doubt that they would try to torture the terrorists into
providing the information.
Moreover, the vast majority of Americans would expect the officers to engage
in that time-tested technique for loosening tongues, notwithstanding our
unequivocal treaty obligation never to employ torture, no matter how exigent
the circumstances." ("Want to Torture; Get a Warrant", SF Chronicle 2002)
Dershowitz is mistaken. According to every survey conducted in the last 5
years, the majority of American people are overwhelming opposed to torture
and--I dare say---they are equally opposed to cops who take the law into
their own hands and "engage in that time-tested technique for loosening
tongues." What Dershowitz is suggesting here is deadly serious and paves the
way for routine abuses of power and police brutality. It is a wonder that
the Bar hasn't stepped in and chastised him for his public stance on this
issue.
Dershowitz's logic is also flawed. His argument can be reduced to this: "The
cops are going to torture anyway, so let's give them the green light by
providing them with "torture warrants"? Isn't that what he is saying?
This is from the same article:
"Every democracy, including our own, has employed torture outside of the
law....Throughout the years, police officers have tortured murder and rape
suspects into confessing -- sometimes truthfully, sometimes not truthfully."
Again, this is poorly argued. Dershowitz is using the same feeble defense
that schoolchildren use when they're caught breaking the rules: "Everyone
else was doing it." That is not an acceptable defense for torture.
Finally, Dershowitz offers this threadbare excuse for waterboarding:
"There are some who claim that torture is a nonissue because it never
works---it only produces false information. This is simply not true,as
evidenced by the many decent members of the French Resistance who, under
Nazi torture, disclosed the locations of their closest friends and
relatives."
Dershowitz is invoking the classic "ends justifies the means" defense, but
not very cogently. What difference does it make if the information that is
extracted through "physical coercion" is of some utility or not if the
system you are trying to defend has been obliterated by your actions? It
doesn't require a finger-wagging patriot or a moralizing scold to see that
state-sanctioned torture means the end of the republic. There is no such
thing as "legal torture". It is a contradiction in terms. Torture is an
assault on the fundamental rights of man and the rule of law. It is one of
"red lines" that we don't cross because on the other side is tyranny.
There are certain basic assumptions upon which our country was founded and
the entire legal and political system rests. These are our core beliefs;
they are not facts. That's why the preamble of the Constitution reads: "We
hold these truths to be SELF EVIDENT" because the founders posited that
these beliefs did not require proof among civilized people. Among those
"assumptions" is the idea of "inalienable rights" and the intrinsic value of
man. Inalienable rights can't be casually swept away by a presidential
signing statement or a congressional edict legalizing "torture warrants" any
more than the Congress can haphazardly repeal habeas corpus by passing the
Military Commissions Act. That's beyond their "pay grade". These officials
weren't elected to rewrite the Constitution, but " to preserve, protect and
defend" it to the best of their ability. These core principles cannot be
changed without destroying the country itself.
Is that the hidden agenda here; to reshape the nation according to an ethos
that is more disposed to autocratic government?
The Constitution isn't a security blanket. If we want to minimize the number
of terrorist attacks on American citizens or US institutions; we should stop
using war as an implement of foreign policy. As Noam Chomsky says, "The best
way to stop terrorism; is stop committing it." That's good advice. We ought
to put that on a billboard in front of the White House so the occupants can
mull it over every day on their way to work.
Dershowitz's ruminations on waterboarding offer nothing constructive as far
as national security is concerned. It just more demagoguery.
I agree with Dershowitz that "waterboarding cannot be decided in the
abstract." Nor has it been. It has been thoroughly researched and condemned
under the Geneva Conventions, the US military, and every human rights
organization on earth. The issue has already been decided. It is torture,
pure and simple, and no amount of legalistic gibberish changes a thing.
There's another reason for rejecting torture besides the fact that it is
morally abhorrent, or because it conflicts with our reading of the
Constitution, or even because it abrogates the presumption of innocence, due
process, the right to attorney, habeas corpus and every other principle to
which we claim to adhere.
The real reason that torture should be rejected is because it confers more
authority on the state than is prudent for the safety and welfare of "We the
people". The state is now-and has always been-the greatest threat to human
rights and civil liberties. That's truer today--in our post 9-11 world--than
ever before. The state is the natural enemy of personal freedom.
Dershowitz's polemic has nothing to do with his alleged interest in the
security of the American people. That's hogwash. It is an attempt to expand
the authority of the state by softening public attitudes towards torture.
It's a blatant power-grab, pure and simple; and should be repudiated by
anyone who grasps its true meaning.
_______
Mike Whitney
--
NOTICE: This post contains copyrighted material the use of which has not
always been authorized by the copyright owner. I am making such material
available to advance understanding of
political, human rights, democracy, scientific, and social justice issues. I
believe this constitutes a 'fair use' of such copyrighted material as
provided for in section 107 of the US Copyright
Law. In accordance with Title 17 U.S.C. Section 107
"A little patience and we shall see the reign of witches pass over, their
spells dissolve, and the people recovering their true sight, restore their
government to its true principles. It is true that in the meantime we are
suffering deeply in spirit,
and incurring the horrors of a war and long oppressions of enormous public
debt. But if the game runs sometimes against us at home we must have
patience till luck turns, and then we shall have an opportunity of winning
back the principles we have lost, for this is a game where principles are at
stake."
-Thomas Jefferson
By Mike Whitney
Created Dec 13 2007 - 7:24am
Alan Dershowitz is a skillful debater, a capable attorney, and and a
ferocious defender of Israel. He is also a Harvard professor and a former
member of OJ Simpson's legal defense called the Dream Team.
An article by Dershowitz appeared on op-ed page of the Wall Street Journal
on Novemeber 7, 2007, titled "Democrats and Waterboarding". In that article
Dershowitz makes a spirited defense of waterboarding, going so far as to say
that (he believes) the Democrats "will lose the presidential race if it
defines itself as soft on terror." Dershowitz thinks the Democrats are
headed for trouble if they assume the "pacifistic stance" that he identifies
with Cindy Sheehan and Michael Moore. By using Moore and Sheehan as
examples; it is clear that Dershowitz accepts the media's attempts to
dismiss them as part of an imaginary "leftist fringe".
Instead, Dershowitz holds up ex-New York Mayor Rudolph Giuliani as an
example of a candidate whose popularity has steadily grown because of his
"tough" stance on national security issues. Dershowitz uses the "national
security" hobgoblin in the same way as Bush; to justify government
activities that conflict with our existing laws and basic principles. It is
a neat bit of lawyerly footwork, but unconvincing.
In Dershowitz's defense, it is true that he does not approve of "the routine
use of torture", but only in the rare situation when it might be useful in
gaining " preventive intelligence information about imminent acts of
terrorism--the so-called "ticking bomb" scenario." But, who decides? Do we
bestow this authority on men who have already proven to be
untrustworthy---on men who have already created an industrial scale system
of torture in black sites around the world? Who do we trust with these new
powers?
And how do we know when a so-called "terrorist suspect" is a terrorist at
all? Are we being asked to forgo due process and the presumption of
innocence along with our revulsion to cruel and inhuman treatment?
Dershowitz's loves to use the "ticking time-bomb" scenario and trots it out
at every opportunity. It is a very persuasive argument, until one really
examines the implications. Jose Padilla was supposedly a "ticking
time-bomb",
wasn't he? According to the earliest public statements by the Bush
administration, Padilla had smuggled a nuclear device or "dirty bomb" into
the country and was planning to use it in a terrorist attack against
American civilians. But it wasn't true. The government had fabricated the
entire story and kept him in prison without charges for over 4 years on
claims that were manifestly false. The Bush administration has never offered
an explanation for their lies.
Padilla's attorney has produced convincing evidence that he was repeatedly
tortured in prison and was, thus, driven insane. And for what? The
government knew that he was not involved in a terrorist plot to kill
Americans. Under Dershowitz's regime, Padilla's treatment would be entirely
justified. Is that what we want?
The "ticking time-bomb" argument is a way of challenging our core values.
It's a test. It's like asking, "How much are we really willing to sacrifice
for the sake of our beliefs? Are we willing to risk our lives and the lives
of the people we love ?" Or are we ready to "throw in the towel" and hand
the government even greater and more lethal powers hoping that they'll keep
us safe?
Dershowitz says, "I am personally opposed to the use of torture." But that
is not true. If he is opposed to torture then how does he explain his
support for "torture warrants"? The two are mutually exclusive.
In Dershowitz's book, "Shouting Fire: Civil Liberties in a Turbulent Age,"
he says:
"No torture would be permitted without a "torture warrant" being issued by a
judge....An application for a torture warrant would have to be based on the
absolute need to obtain immediate information in order to save lives coupled
with probable cause that the suspect had such information and is unwilling
to reveal it....The warrant would limit the torture to nonlethal means, such
as sterile needles, being inserted beneath the nails to cause excruciating
pain without endangering life."
It's shocking that a respected author and attorney would actually qualify
the type of needles ("sterile") that can be used while conducting torture.
Can we see how outrageous this is?
The excerpt proves that Dershowitz advocates torture. The support for
"torture warrants" is support torture. Period. It doesn't matter if the
torture is limited to extreme cases or not. It's barbarism. More
importantly, it is barbarism that is vindicated by the state.
Dershowitz has been defending his position on torture for more than 4 years.
Here are his comments in 2002 from the op-ed page of the SF Chronicle :
"If American law enforcement officers were ever to confront the law school
hypothetical case of the captured terrorist who knew about an imminent
attack but refused to provide the information necessary to prevent it, I
have absolutely no doubt that they would try to torture the terrorists into
providing the information.
Moreover, the vast majority of Americans would expect the officers to engage
in that time-tested technique for loosening tongues, notwithstanding our
unequivocal treaty obligation never to employ torture, no matter how exigent
the circumstances." ("Want to Torture; Get a Warrant", SF Chronicle 2002)
Dershowitz is mistaken. According to every survey conducted in the last 5
years, the majority of American people are overwhelming opposed to torture
and--I dare say---they are equally opposed to cops who take the law into
their own hands and "engage in that time-tested technique for loosening
tongues." What Dershowitz is suggesting here is deadly serious and paves the
way for routine abuses of power and police brutality. It is a wonder that
the Bar hasn't stepped in and chastised him for his public stance on this
issue.
Dershowitz's logic is also flawed. His argument can be reduced to this: "The
cops are going to torture anyway, so let's give them the green light by
providing them with "torture warrants"? Isn't that what he is saying?
This is from the same article:
"Every democracy, including our own, has employed torture outside of the
law....Throughout the years, police officers have tortured murder and rape
suspects into confessing -- sometimes truthfully, sometimes not truthfully."
Again, this is poorly argued. Dershowitz is using the same feeble defense
that schoolchildren use when they're caught breaking the rules: "Everyone
else was doing it." That is not an acceptable defense for torture.
Finally, Dershowitz offers this threadbare excuse for waterboarding:
"There are some who claim that torture is a nonissue because it never
works---it only produces false information. This is simply not true,as
evidenced by the many decent members of the French Resistance who, under
Nazi torture, disclosed the locations of their closest friends and
relatives."
Dershowitz is invoking the classic "ends justifies the means" defense, but
not very cogently. What difference does it make if the information that is
extracted through "physical coercion" is of some utility or not if the
system you are trying to defend has been obliterated by your actions? It
doesn't require a finger-wagging patriot or a moralizing scold to see that
state-sanctioned torture means the end of the republic. There is no such
thing as "legal torture". It is a contradiction in terms. Torture is an
assault on the fundamental rights of man and the rule of law. It is one of
"red lines" that we don't cross because on the other side is tyranny.
There are certain basic assumptions upon which our country was founded and
the entire legal and political system rests. These are our core beliefs;
they are not facts. That's why the preamble of the Constitution reads: "We
hold these truths to be SELF EVIDENT" because the founders posited that
these beliefs did not require proof among civilized people. Among those
"assumptions" is the idea of "inalienable rights" and the intrinsic value of
man. Inalienable rights can't be casually swept away by a presidential
signing statement or a congressional edict legalizing "torture warrants" any
more than the Congress can haphazardly repeal habeas corpus by passing the
Military Commissions Act. That's beyond their "pay grade". These officials
weren't elected to rewrite the Constitution, but " to preserve, protect and
defend" it to the best of their ability. These core principles cannot be
changed without destroying the country itself.
Is that the hidden agenda here; to reshape the nation according to an ethos
that is more disposed to autocratic government?
The Constitution isn't a security blanket. If we want to minimize the number
of terrorist attacks on American citizens or US institutions; we should stop
using war as an implement of foreign policy. As Noam Chomsky says, "The best
way to stop terrorism; is stop committing it." That's good advice. We ought
to put that on a billboard in front of the White House so the occupants can
mull it over every day on their way to work.
Dershowitz's ruminations on waterboarding offer nothing constructive as far
as national security is concerned. It just more demagoguery.
I agree with Dershowitz that "waterboarding cannot be decided in the
abstract." Nor has it been. It has been thoroughly researched and condemned
under the Geneva Conventions, the US military, and every human rights
organization on earth. The issue has already been decided. It is torture,
pure and simple, and no amount of legalistic gibberish changes a thing.
There's another reason for rejecting torture besides the fact that it is
morally abhorrent, or because it conflicts with our reading of the
Constitution, or even because it abrogates the presumption of innocence, due
process, the right to attorney, habeas corpus and every other principle to
which we claim to adhere.
The real reason that torture should be rejected is because it confers more
authority on the state than is prudent for the safety and welfare of "We the
people". The state is now-and has always been-the greatest threat to human
rights and civil liberties. That's truer today--in our post 9-11 world--than
ever before. The state is the natural enemy of personal freedom.
Dershowitz's polemic has nothing to do with his alleged interest in the
security of the American people. That's hogwash. It is an attempt to expand
the authority of the state by softening public attitudes towards torture.
It's a blatant power-grab, pure and simple; and should be repudiated by
anyone who grasps its true meaning.
_______
Mike Whitney
--
NOTICE: This post contains copyrighted material the use of which has not
always been authorized by the copyright owner. I am making such material
available to advance understanding of
political, human rights, democracy, scientific, and social justice issues. I
believe this constitutes a 'fair use' of such copyrighted material as
provided for in section 107 of the US Copyright
Law. In accordance with Title 17 U.S.C. Section 107
"A little patience and we shall see the reign of witches pass over, their
spells dissolve, and the people recovering their true sight, restore their
government to its true principles. It is true that in the meantime we are
suffering deeply in spirit,
and incurring the horrors of a war and long oppressions of enormous public
debt. But if the game runs sometimes against us at home we must have
patience till luck turns, and then we shall have an opportunity of winning
back the principles we have lost, for this is a game where principles are at
stake."
-Thomas Jefferson