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RJ Eskow

RJ Eskow

Posted: November 17, 2007 01:39 PM

Alan Dershowitz Supports Torture


Alan Dershowitz has written a post that first attacks Larisa Alexandrovna for suggesting he's pro-torture, and then goes on to accuse the Huffington Post of censorship. Regarding Ms. Alexandrovan, he apparently feels it's "name-calling" - and worse - to state what appears to be obvious: Although Mr. Dershowitz professes his opposition to torture, he continues to advocate for its use. Specifically, he wants to make it legal for the United States government to engage in torture practices under certain conditions.

Mr. Dershowitz's logic appears to be that making torture legal and then establishing guidelines for its limited use is actually a form of noble opposition. It's hard to understand how he can argue that this make him "anti-torture," but his motives and state of mind are immaterial to the discussion.

Here's what Mr. Dershowitz told CNN in 2003: "If torture is going to be administered as a last resort in the ticking-bomb case, to save enormous numbers of lives, it ought to be done openly, with accountability, with approval by the president of the United States or by a Supreme Court justice." He went on to advocate the use of "torture warrants" that put "a heavy burden on the government to demonstrate by factual evidence the necessity to administer this horrible, horrible technique of torture."

Were these just slips of the tongue? Then let's look at Mr. Dershowitz's written words on the subject (with my commentary in parentheses). He has written:

I am against torture as a normative matter ... (It's unclear in which sense he's using the word "normative." If he means he doesn't want us to use torture as a normal practice, then he explicitly does not state that he is against torture in exceptional situations. If he means "normative" to be established in rule and precedent, he contradicts himself later by laying out suggested guidelines for its use.)


... I would like to see its use minimized.(Minimized - not eliminated)

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. (But does he oppose this practice? He specifically avoids saying so.)

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'm not sure he's right. In any case, matters of ethics, law, and morality are not decided by popularity contest.)

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? (In this sentence Dershowitz a) endorses the fictional "ticking bomb" scenario, b) introduces the concept of "torture warrants," and c) proposes "standards and limitations" for acceptable forms of government torture.)

This is an important debate, and a different one from the old, abstract Benthamite debate over whether torture can ever be justified. (In other words, that question has been answered in the affirmative: Torture can be justified under the "ticking bomb" scenario.)

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. (See above. Torture is sometimes justifiable, and it is incumbent upon our government to define the terms of its use and create legal mechanisms that permit torture to be conducted by the United State.)

It is impossible for any reasoning person to read the above words and come to any conclusion but this one: Mr. Dershowitz believes torture is unpleasant, but that it is useful in certain situations. He wishes to see it legalized as a form of state practice, but with restraints on its use. In short, Mr. Dershowitz supports the use of torture in certain circumstances, and is actively advocating for its legalization.

That means that Larisa Alexandrovna was clearly correct in asserting that Mr. Dershowitz supports torture. Given that Alexandrovna, Dershowitz, and I are members of the Jewish-American community, I'll grant that she was definitely taking the gloves off by pointing out that torture was a common Nazi practice. That's a matter of style, however, and not substance. Mr. Dershowitz's rebuttal questions her accuracy, but the fact is clear: Dershowitz is objectively pro-torture.

I don't know Mr. Dershowitz personally and I don't bear him any ill will. If my interpretation of his own words is incorrect, I invite him to clarify and/or retract them - or to explain how I have misinterpreted them. If he does so in a matter that suggests that he is in fact opposed to torture, I will gladly and publicly withdraw any and all statements to the contrary. That should address Mr. Dershowitz's propensity to suggest that any challenge to his stated positions is a personal attack.

I can't speak to Mr. Dershowitz's other accusations against the Huffington Post, but given his misrepresentation of my positions and those of many others in the past, I would suggest the burden of proof lies with him and not his opponents.

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