By
William F. Schulz | The
Nation

lan Dershowitz prides himself on his credentials as a civil
libertarian, and to judge by most of the essays in his latest book,
Shouting Fire: Civil Liberties in a Turbulent Age, he has good reason to
do so. The Harvard law professor has built a considerable reputation on
his defense of free speech, due

process and the separation of church
and state, to say nothing of his propensity for controversial clients and
clamorous talk shows. Shouting Fire is a pastiche of fifty-four essays,
some of them new, most of them not, the earliest dating from 1963. The
impetus for the collection appears to be at least in part a desire to
reassert the importance of civil liberties, even in the face of such
national security threats as those posed by the events of September 11 and
their aftermath. Moreover, Dershowitz admirably offers what rights
advocates rarely do: a philosophical grounding for civil and political
rights beyond the mere positivist assertion that "that's the law."

If this were all Dershowitz had done in Shouting Fire, the book
might have received its share of kind reviews and headed off to
Remainderland. But in less than two of the book's 550 pages, he
manages to guarantee the collection a longer shelf life. For in an
addendum to a 1989 article in the Israel Law Review, Alan
Dershowitz, civil libertarian, champion of progressive causes,
counsel to human-rights hero Anatoly Shcharansky, makes a case for
torture or, more exactly, for the creation of a new legal device
that he dubs a "torture warrant." And then, through a deft
combination of newspaper editorials, public appearances and an
extended interview on 60 Minutes, Dershowitz has expanded upon that
proposition in a way designed to make talk of torture routine and,
not incidentally, banter about his book robust.

Dershowitz's proposal, therefore, deserves careful scrutiny, not
only because it comes from a respected voice but also because
sources in the FBI have floated the possibility that torture will be
applied against prisoners or detainees who refuse to tell what they
know about terrorists. Last October 45 percent of Americans approved
of that. Today, thanks to Dershowitz and others having lent the idea
the patina of respectability--Jonathan Alter writing in Newsweek,
Bruce Hoffman in The Atlantic--the number may be higher.

Dershowitz starts with the familiar scenario from every freshman
philosophy class, the case of the ticking bomb. Suppose the
authorities are holding a suspect who knows where a ticking bomb is
located, a bomb that will kill hundreds of people if it explodes.
Would they be justified in torturing the suspect to procure the
information and thereby save innocent lives?

Dershowitz contends that whether we like it or not, the officials
would inevitably resort to torture and, what's more, the vast
majority of us would want them to. But because any officer who did
so might be subject to prosecution, despite the availability of the
common law defense that a crime may be justified if it is necessary
to prevent a greater evil, the onus of responsibility should not be
left on the individual official. Instead the authorities should
apply to a court for a "torture warrant," similar to a search
warrant, so that the courts must bear the burden of authorizing
torture or the consequences of failing to do so. In another context
Dershowitz has offered the reassurances that "the suspect would be
given immunity from prosecution based on information elicited by
torture" and that "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."

Despite these precautions, however, Dershowitz's proposal has not
met with universal acclaim, and in recent weeks he has appeared to
be distancing himself from it. In a February 17 letter to The New
York Times Book Review responding to a critical review of Shouting
Fire, Dershowitz claims that "the only compromises [with civil
liberties] I suggest we should consider, and not necessarily adopt,
relate directly to protecting civilians against imminent terrorist
attacks [emphasis added]." But there is no hint on the two relevant
pages of Shouting Fire that Dershowitz's "torture warrant" proposal
is merely hypothetical. Indeed, in commenting on the decision by the
Supreme Court of Israel that prompted the idea in the first place,
he chastises the court for leaving interrogating officers vulnerable
to prosecution if they use torture and says, "The Supreme Court of
Israel...or the legislature should take the...step of requiring the
judiciary to assume responsibility [for torture] in individual
cases." Dershowitz is stuck with his "torture warrants" just as
surely as Arthur Andersen is stuck with its Enron audits.

So what, after all, is wrong with that--other than the fact that
torture violates both the Convention Against Torture, which the
United States ratified in 1994, and the Constitution? The first
thing that is wrong is that the act of torture, unlike that of

searching for something, is in itself both universally condemned
and inherently abhorrent. Under international law, torturers are
considered hostis humani generis, enemies of all humanity, and that
is why all countries have jurisdiction to prosecute them, regardless
of where the torture took place.

The fact that a US court or legislature might offer its approval
of the act does not abrogate that internationally recognized
standard any more than a court in Singapore that authorizes the
jailing of a dissident journalist makes Singapore any less guilty of
violating the rights of a free press. Tyrannical governments often
try to cloak their human rights violations in national statute. It
is interesting, however, that no country has ever legalized torture
except, arguably, Israel, until the Israeli Supreme Court struck
down the provision for the use of "moderate physical pressure," and
even while that provision was on the books, the Israeli government
argued vehemently that such pressure was not the equivalent of
torture.

To see more clearly the shoals upon which the "torture warrant"
flounders, consider this. There is no doubt that despite official
efforts to eradicate it, police brutality is practiced in many US
jurisdictions and probably always will be. Some police officers will
claim, in their more candid moments, that the use of excessive force
is often the only way to protect the lives of officers and the
general public. Why ought the police not be able, therefore, to
apply for "brutality warrants" in specialized cases? Why ought
police officers who believe that a little shaving of the truth on
the witness stand is worth sending a bunch of drug pushers to
prison, thus protecting hundreds of youngsters from a life of drugs
and crime, not be able to seek "'testilying' warrants"? Why ought
correctional officers who argue that allowing dominant male
prisoners to rape other prisoners helps preserve order among thugs
and thus protects the lives of guards not be allowed to seek
"warrants to tolerate prisoner rape" in particularly dangerous
situations?

The answer in all cases is the same: because the act itself
(brutalizing citizens; committing perjury; facilitating rape) is
itself abhorrent and illegal. Dershowitz's analogy to search
warrants fails because, while a particular search may itself be
illegal, the act of searching is not ipso facto unethical or a
crime. For a society to start providing its imprimatur to criminal
acts because they are common or may appear to provide a shortcut to
admirable ends is an invitation to chaos.

But even if torture were a licit activity under some
circumstances, there are very good pragmatic reasons to reject its
use. If the ticking bomb scenario were designed only to establish
the abstract moral calculus that the death of X number of people
constitutes a greater evil than the torture of one, it would
certainly be possible to make a plausible utilitarian argument for
torture. The problem is, however, that the proponents of the ticking
bomb scenario want it to serve as the basis of public policy, and
unfortunately reality rarely conforms to scenarios and life doesn't
stop where the scripts do. How strange that though the ticking bomb
scenario has been used for decades to justify torture, its defenders
are unable to cite the details of even one verifiable case from real
life that mirrors its conditions.

Perhaps, upon reflection, that is not so strange. For what the
ticking bomb case asks us to believe is that the authorities know
that a bomb has been planted somewhere; know it is about to go off;
know that the suspect in their custody has the information they need
to stop it; know that the suspect will yield that information
accurately in a matter of minutes if subjected to torture; and know
that there is no other way to obtain it. The scenario asks us to
believe, in other words, that the authorities have all the
information that authorities dealing with a crisis never have.

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