The Nitty-Gritty on Torture

11/20/2007 01:19 pm ET | Updated May 25, 2011

Now we're getting down to it. It's gratifying to see Alan Dershowitz summarize his position a little more succinctly without digressions into personality conflicts, at least for a paragraph or two. That permits us to examine his position and its weaknesses more directly. It would not be worthwhile extending this debate, except for the fact that many people - including at least one Democratic Presidential candidate - appear to take the torture advocacy argument seriously. This is a critical test of our nation's character and good judgment, which is why it's worth addressing once more.

"I am opposed to (torture) on grounds of principle or morality," says Mr. Dershowitz, "but empirically I know it is being used and would be used by any president in any situation." There it is. Although he then goes to suggest that this position is "clear to anyone who wants to understand it" and not "distort it," it is in fact a self-distorting statement. I'm against it, but it's going to happen, so I accept it.

I've already summarized his position accurately and fairly, as far as can be determined:

"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."

Mr. Dershowitz fails to address any of my other points directly. Instead he attempts to find historical parallels for his curious "pro/anti" position. Among these is the death penalty, of which he writes: "I oppose it, but since it is being carried out, I want accountability and legal procedures including an execution warrant."

But the death penalty is currently legal, while torture is currently illegal under U.S. and international law. If the death penalty were illegal and Mr. Dershowitz were arguing for its practical value, then proposing new laws permitting its use under certain circumstances, the conclusion would be inevitable: He wants to create legalize something that is currently illegal, and is making the case for its usefulness.

The notion that torture has practical value has been dispelled many times in the past, by this author and others. For brevity's sake, we will leave it here with this simple declaration: Our military leaders oppose it. They know what they're talking about.

Let's get down to the nitty-gritty on the torture issue with a word Mr. Dershowitz used: Morality. It is either immoral, or it is not. Torture advocates all assume an air of world-weariness, like an aging Parisian gendarme on the Rue St. Denis. "You are so naive, Monsieur," they seem to sigh. "This behavior, it has always been with us."

Perhaps. So have other evils. Take, for example, the rape and murder of children and other innocent civilians in a time of war. If a citizen claims to oppose these acts, she or he might be expected to call for better enforcement of regulations against their use. They might call for a commission charged with ensuring these atrocities are made less likely in the future. They might proclaim loudly that this behavior is against our national values. When somebody commits the acts they opposed, they might call for their punishment under the law.

Now let us hypothesize a public figure (and I am sincere and emphatic when I say I do not mean Mr. Dershowitz) who has done none of these things. Instead she or he says the following:

1) Such acts are regrettable, and I oppose them as a matter of morality.
2) They do, however, have practical value under certain (highly theoretical) scenarios.
3) What's more, they have always happened and will always happen.
4) I therefore propose a legal framework that includes guidelines for their permissible use.
5) The Defense Department may request "rape/murder warrants" under this framework.
6) Such "rape/murder warrants" will only be granted under "exceptional circumstances."

Now let's say that others argue that this represents an attempt to introduce and "normalize" an abhorrent and unhelpful practice, to which our public figure responds: "I'm an opponent of civilian rape and murder, and their statements are nothing more than 'name-calling.'""

Would you buy that argument? Or would it read like an attempt to have it both ways, helping to promote an objectionable practice while at the same time to trying to cling to the moral high road?

We must resist the efforts of Mr. Dershowitz and others to provide torture with a veneer of moral and legal acceptability. Our national security - and our national conscience - demand nothing less.