Dershowitz Opposes Torture

In several of the responses to my blog about Chief Justice Rehnquist, people have claimed that I support torturing terrorist suspects. This is a canard being spread by my enemies, both on the hard right and the hard left. Nothing could be further from the truth than the claim that I support torture. I have made this point clearly and repeatedly in my writing. Here is what I have written:

I am against torture as a normative matter, and I would like to see its use minimized. I believe that at least moderate forms of nonlethal torture are in fact being used by the United States and some of its allies today. I think that if we ever confronted an actual case of imminent mass terrorism that could be prevented by the infliction of torture, we would use torture (even lethal torture) and the public would favor its use….

I pose the issue as follows. If torture is, in fact, being used and/or would, in fact, be used in an actual ticking bomb terrorist case, would it be normatively better or worse to have such torture regulated by some kind of warrant, with accountability, recordkeeping, standards and limitations? This is an important debate, and a different one from the old, abstract Benthamite debate over whether torture can ever be justified. It is not so much about the substantive issue of torture as it is about accountability, visibility, and candor in a democracy that is confronting a choice of evils.

One of the responses even suggested that I favored the outrageous misconduct that took place at Abu Ghraib. That, too, is categorically false. Here is what I have written about Abu Ghraib:

The recent disclosure of significant abuses by military intelligence and military police officers in the Abu Ghraib prison outside of Baghdad, demonstrates what happens when high-ranking officials have a “don’t ask, don’t tell policy” toward the use of extraordinary pressures in interrogation. While our leaders in Washington and our commanders in the field adamantly denied the use of any form of torture - - light or otherwise - - a subtle message was being conveyed down the chain of command that intelligence and police officials on the ground could do what they had to do to obtain important information. If this had not been perceived by the soldiers as the message from above, there is no way these photographs would have been so openly distributed.

When the message is sent in this way – by a wink and nod - no lines are drawn, no guidelines issued and no accountability accepted. The result was massive abuses by those on the ground, coupled with deniability by those at the top.

How much better it would have been if we required that any resort to extraordinary means - - means other than routine interrogation - - be authorized in advance by someone in authority and with accountability. If a warrant requirement of some kind had been in place, the low ranking officers on the ground could not plausibly claim that they had been subtly (or secretly) authorized to do what they did, since the only acceptable form of authorization would be in writing. Nor could the high ranking officials hide behind plausible deniability, since they would have been required to give the explicit authorization. Moreover, since authorization would have to go through the chain of command, limitations would have been imposed on allowable methods. These would not have included the kind of gratuitous humiliation apparently inflicted on these prisoners.

There are of course no guarantees that individual officers would not engage in abuses on their own, even with a warrant requirement. But the current excuse being offered - - we had to do what we had to do to get information - - would no longer be available, since there would be an authorized method of securing information in extraordinary cases by the use of extraordinary means. Finally, the requirement of securing advanced written approval would reduce the incidence of abuses, since it would be a rare case in which a high ranking official, knowing that the record will eventually be made public, would authorize extraordinary methods - - and never methods of the kind shown in the Abu Ghraib photographs.

My proposal for a torture warrant is certainly controversial and there are good arguments on the other side. That issue should be debated on the merits, but no honest person can accuse me of supporting torture. Yet the accusation persists among those determined to distort my position.

Alan Dershowitz is a professor of law at Harvard. His most recent book is The Case for Peace: How the Arab-Israeli Conflict Can Be Resolved (Wiley 2005).