03 July 2006

"Alan Dershowitz: Should we fight terror with torture?"

Before we go into the murky business of torture, I simply must say a few words about the source of the quoted headline above. It comes from no one else but the dear good ole Indy. Yes, ladies and gentlemen: Indy and Dershowitz. And it does not stop here, now look at this:

Here, America's leading liberal lawyer, Alan Dershowitz, presents the case for radical reform.

No, I think I have understressed the point, here it goes again:

America's Leading Liberal Lawyer, Alan Dershowitz

That's better, I think. It is still unbelievable, and if you look at the recent cover page of the same Indy, it will become clear to you that Indy is living through a bad case of split personality. If that cover page belongs to a set of illustrations for the new edition of "Elders of Zion", the reference to Alan Dershowitz as LLL by Indy could be easily sung to the melody of "Hatikva".

Well, let's leave the mental state of Indy to psychiatrists and move on to the LLL's article. In this essay Dershowitz states that the law regarding the treatment of prisoners is evolving with time (a point that will be difficult to challenge) and brings forth a sufficient number of cases to support this statement. So far so good.

Now comes the first "but". Dershowitz uses the dilemma of pre-emptive action against imminent threat to show that the current state of the law may be a tad too evolved for our own good, disregarding the new dangers that expect us just around the corner.

The laws of pre-emptive and preventive self-defence are but one example of the legal sclerosis from which we are suffering in the war against terrorism.

I mulled a bit on this one. After a short period of time, I am quite sure that I have no special difficulty swallowing this pill. It leaves some aftertaste, though, but definitely swallowable. I do believe that there is some vacuum in the law regarding the possible need of pre-emptive action. I do suspect that a) some interested parties will never let the international law to change in the desired direction and b) that we better be careful with formulating the rules of engagement here. Otherwise every two-bit dictator with a Napoleon complex will find a lawyer good enough to justify any military adventure to the dictator heart's desire.

Then, on the subject of targeted killings:

Human-rights organisations often fail to distinguish between civilian deaths accidentally caused by democracies despite their best efforts to avoid them, and civilian deaths deliberately caused by terrorists who seek to maximise civilian casualties by constructing anti-personnel bombs, designed to kill as many innocent people as possible, and by specifically targeting crowded buses and other soft targets.

Somewhat true. In an ideal world, human rights organisations should not be the judge, rather the reporter, but in the same ideal world the democracies should not carry out targeted killings. Which they do in the existing imperfect world simply because of impossibility to act according to the law. The targets of the killings do not easily submit themselves to the arm of the law nowadays. So both the human rights organisations and the above mentioned democracies do what they can in the world which is very far from being ideal.

The law should also cast the blame for unintended civilian deaths caused by democracies on the terrorists who deliberately hide among civilians using them as "shields". The domestic law of most democratic nations does precisely that. If a bank robber takes a teller hostage and uses him as a shield against the police, and if the police, in an effort to shoot the robber who is firing from behind his shield, kills the shield, it is the robber who is guilty of murder, even though it was the policeman who fired the fatal shot. The same should be the case in international law.

Good point, terrorists hiding in the midst of civilian population are the worst scum yet invented. And then, after building up steam, Dershowitz goes full ahead into the subject of torture.

Next, consider the problem of what to do with captured "prisoners" who are believed to be terrorists.
The problem is that the current laws regulating the detention of combatants are near useless when it comes to this motley array of detainees.
Those who have valuable, real-time information will be interrogated, and - short of the absolute law against "torture" - there are few, if any, rules governing the nature of permissible interrogation when the object is not to elicit "incrimination confessions" for purposes of criminal prosecution, but rather to obtain "preventive intelligence" for the purpose of pre-empting future terrorist attacks.
There is today a vast "black hole" in the law. It is this hole that accounts for Guantanamo, extraordinary renditions and other phantom places and actions about which we know nothing. As a lifelong civil libertarian, I strongly oppose such gaps in the law.
The laws must be changed to permit democracies to fight fairly and effectively against those who threaten its citizens. To paraphrase Robert Jackson, who served as the United States chief prosecutor at Nuremberg - the law must not be "a suicide pact".

(A side remark for Indy: there is a world of difference between a libertarian and a liberal, look it up if you have time).

The main thrust of the article is that "I strongly oppose such gaps in the law". Mind you, Dershowitz does not say "I oppose torture in any case", he opposes the gaps in the law!

And here he comes head to head with many, for whom prohibition of torture in any circumstances is a moral imperative, the unbreakable taboo that does not bear exceptions. I can do much worse than to quote from numerous posts by Norm on the subject.

Along with the prohibitions of other core crimes against humanity - genocide amongst them - the prohibition of torture comes under the doctrine of jus cogens: it is a peremptory norm binding all states, and from which none may opt out; it protects a right from which derogation is not allowed even in war or national emergency.

Torture is morally wrong, and shouldn't be used.

Exposing people to the risk of torture is wrong because torture is wrong. It is an absolute wrong. It cannot be justified by the war on terror, or by anything.

Only in one single case - that of ticking bomb - Norm's certainty seems to be just a tiny bit short of absolute certainty.

That's always the sort of example wheeled out - torturing to avert an imminent catastrophe. But in matters of this gravity the law has to be formulated to embody, not the exceptional case, but the fundamental norm, general policy. And even in the exceptional case - when the heavens are about to fall - to torture is to commit a wrong and a crime. Those who represent and act for us, in democracies, need to know that. They are less likely to know it if they prevaricate over what the basic norms actually are.

I may be totally wrong, but the above does leave a trace of uncertainty. Norm does not say outright - no, we will not use torture even when facing the imminent catastrophe, just that the persons who issue the command and perform the deed should know that they are committing a crime.

I think that Dershowitz and Norm are approaching the issue of torture on two different planes. A person of law is less concerned with universal and absolute justice and morality, being totally absorbed by the realm of law. Norm, on the other hand, is concerned exclusively with morality of our acts. While the two realms interact (after all the change of law Dershowitz is calling for will definitely change our moral values in the long run), isn't there a solution to the ticking bomb quandary?

Tagging Norm.


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