Torture Doesn't Work: A Critique of Alan Dershowitz' Case
By Jack Rabbit
Alan Dershowitz, the renowned legal scholar and civil libertarian,
has stirred up a small hornets nest since the September 11
attacks by talking openly about the possibilities of sanctioning
torture in America. Dershowitz feels it is incumbent on him
to lead a discussion on a choice he feels is unpleasant but
Torture is regarded by progressive civil libertarians as
an abomination that every civilized nation should outlaw.
Modern international humanitarian law categorically prohibits
its use. The Rome
Statute classifies torture as a crime against humanity,
Geneva Convention (1949; Aritcles 3, 17, 87 and 130) prohibits
its use against prisoners of war and the Fourth
Geneva Convention (1949; Articles 3, 32 and 147) probhits
it against civilians in situations of armed conflict. The
United Nations Declaration
of Human Rights (1948; Article 5) states unequivocally,
"No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment." Gloss is put on these
declarations concerning torture by the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (1984), to which the United States is a
The Convention defines torture:
For the purposes of this Convention, the term
"torture" means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on
a person for such purposes as obtaining from him or a third
person information or a confession, punishing him for an
act he or a third person has committed or is suspected of
having committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at
the instigation of or with the consent or acquiescence of
a public official or other person acting in an official
capacity. It does not include pain or suffering arising
only from, inherent in or incidental to lawful sanctions.
Dershowitz is regarded by many as a progressive civil libertarian.
That he should part company with others on a matter that many
feel defines progressivism has outraged more than a few. However,
when one such as Dershowitz suggests that we cast aside much
of what we hold dear, perhaps we should give him a hearing.
Dershowitz' argument can be easily misconstrued if it is
not read. An opinion
piece written by Dershowitz for the Los Angeles Times
(November 8, 2001) outlines his position; a reader can get
a better idea of Dershowitz' thesis by reading Chapter 4 of
his recent book, Why Terrorism Works: understanding the
threat, responding to the challenge (Yale University,
2002, pp. 131-63; all page numbers refer to this volume).
It should be understood from the start that Dershowitz is
suggesting only "nonlethal" forms of torture aimed at extracting
information in national security cases, such as those involving
a planned terrorist attack, and other cases where the potential
for loss of human life would be catastrophic. Moreover, Dershowitz
is very much aware of the constitutional issues surrounding
the use of torture; Dershowitz is quite aware that no information
extracted under torture could be used against the informant
in any criminal proceedings. Dershowitz deserves to be lauded
for having his priorities straight enough to opt, when presented
with an exclusive choice of one or the other, for preventing
the execution of the crime and saving lives over prosecuting
and punishing the criminal.
Of course, that choice is one given in a hypothetical situation.
Law professors often present hypothetical situations as teaching
aides. They provide neat, clear cases where the student has
no trouble recognizing how the legal principle is applied
to given facts. To advance his ideas about the proper use
of torture, Dershowitz uses the ticking bomb scenario. Mr.
Dershowitz explains the case (p. 140) by quoting another scholar,
[A] decent leader of a nation plagued with terrorism
is asked "to authorize the torture of a captured rebel leader
who knows or probably knows the location of a number of
bombs hidden in apartment buildings across the city, set
to go off within the next twenty-four hours. He orders the
man tortured, convinced he must do so for the sake of the
people who might otherwise die in the explosions – even
though he believes torture is wrong, indeed abominable,
not just sometimes, but always."
Dershowitz argues that the hypothetical leader acted justly
in this hypothetical situation. Indeed, the facts given as
they are might make a good case for torture. Many of us who
regard torture as a clear crime against humanity are grasping
to hold our own position in light of this case.
Since Dershowitz is not unaware of the constitutional problems
inherent with this position, he offers the legal remedy of
controls and supervision over torture. Rather than prohibit
torture, as would a progressive civil libertarian, he would
legally sanction torture and allow judges to issue a warrant
for its use.
On the one hand, progressive civil libertarians seem stuck.
Dershowitz' case for legally supervised, nonlethal torture
appears to be rooted in good logic in which the conclusions
fall neatly from their premises. However, the conclusion reached
is so odious that one still strives to reject it. To progressive
civil libertarians attempting to hold the line in the context
of a national debate in which Mr. Bush and Mr. Ashcroft seek
broad powers to abrogate civil liberties, even to strip Americans
of their citizenship, and mock the Third Geneva Convention
daily in Guantanamo, Dershowitz appears to have gone over
to the dark side.
On the other hand, Dershowitz' defenders, many of whom are
less committed to progressive principles and the rule of law
than was Dershowitz in the past, claim that the post-September
11 world has changed everything and that pre-September 11
notions about civilized behavior regarding the treatment of
at least a certain class of criminal suspects is just not
However, progressive civil libertarians need not concede
a single point to Dershowitz, let alone the supporters of
Bush and Ashcroft. There are at least three problems with
Dershowitz' case for torture, all of which are fatal.
One problem with Dershowitz' argument is that it is based
on a hypothetical situation. Something so clear would seldom,
if ever, exist in the real world. On close examination, the
ticking bomb case is exposed as absurd and the problems of
Dershowitz' case begins to disappear.
The ticking bomb scenario assumes a situation where the
authorities know the about a plotted crime, but still don't
know enough to begin an effective investigation. Somehow,
we are supposed to believe that there might be a situation
where authorities have certain knowledge of a terrorist's
guilt without knowing exactly of what he's guilty. In this
case, the authorities know who with certainty (the
terrorist leader they have in custody), they know what
(a series of bombs set to go off around the city), they know
when (within the next twenty-four hours), but they
don't know exactly where. Does it seem realistic that
they would know who, what and when, but not where? Wouldn't
the same source of the information about the who, what and
when not also know at least some specific locations of the
bombs and some other possible ones? It seems unlikely that
one would have information in such detail without knowing
more than this scenario allows.
Even in the scenario as given, we are told that the bombs
are planted in some undisclosed apartment buildings throughout
the city. With so little time, the authorities' efforts might
be better spent evacuating any potential target in order to
save lives. Torturing the suspect won't help get people out
of apartment buildings.
Thus, the ticking bomb case fails to show how it is necessary
to torture the suspect in order to save lives.
Dershowitz also brings up the matter of Zacarias Moussaoui,
who is currently in custody and awaiting trial for his part
in the September 11 attacks. Dershowitz presents his argument
in this case as follows (pp. 143-44, emphasis added):
The government decided not to seek a warrant to
search his computer. Now imagine that they had, and discovered
he was part of a plan to destroy large occupied buildings,
but without any further details. They interrogated him,
gave him immunity from prosecution, and offered him large
cash rewards and a new identity. They threatened him, tried
to trick him and tried every lawful technique available.
He still refused. They even injected him with sodium pentothal
and other truth serums, but to no avail. The attack now
appeared to be imminent, but the FBI had no idea
what the target was or what means would be used to attack
it. We could not simply evacuate all buildings indefinitely.
An FBI agent proposes use of nonlethal torture . . . .
What Dershowitz has done is to take an actual case and embellish
it into a hypothetical one. This new scenario has one virtue
of citing a specific person widely believed to be involved
in a specific catastrophe. Otherwise, it is every bit as hypothetical
and just as absurd as the ticking bomb case. It even helps
to illustrate what is wrong with previous scenario. Again,
we are asked to suppose that the authorities found the broad
outlines of the plan on a suspect's computer, but nothing
else that would be useful to them. They have no way of knowing
who Mossaoui's contacts were (in spite of looking at his e-mail
onb the same computer and probably are also checking his telephone
records as well) or knowing who he might have talked with
(in spite of also knowing where he lived and probably contacting
an employer). We are also supposed to believe they have no
information other than he is involved in a plot to destroy
buildings, except that they also know exactly when this event
is to happen.
Is all this too hypothetical? Yes, it is.
Dershowitz' scenario with the Moussaoui case removes the
level of urgency that is inherent in the ticking bomb case.
The authorities could pursue other leads and possibly uncover
the details of the plot before the catastrophe takes place.
There is no need to waste time interrogating an uncooperative
suspect, by either conventional or extraordinary means.
The second problem is that the information gained from a
torture victim must be regarded as unreliable. The authorities
may torture a suspect (Dershowitz suggests sterile needles
placed under fingernails), and he may tell them anything to
get them stop. Since the situation is urgent, time is on the
side of the terrorist. If he is determined to kill people,
he could tell them anything or even nothing at all. The authorities
would have to investigate what he says, since they can't assume
it is true. Of course, investigating the suspect's statements
takes time that the authorities don't have. Torturing the
suspect where time is an urgent factor gains the authorities
Dershowitz asserts that there are instances where torture
has provided accurate information that has prevented harm
to civilians. However, that does not change the fact the information
gained under torture would still need to be investigated in
order to be verified. Normally, police won't take any voluntary
statement made by a suspect at face value unless they already
have something to corroborate it. Any statements made under
the duress of torture should be greeted with even more scrutiny.
Says Dershowitz (p. 137, emphasis in the original):
It is impossible to avoid the difficult moral dilemma of
choosing among evils by denying the empirical reality that
torture sometimes works, even if it does not always
work. No technique of crime prevention always works.
In other words, Dershowitz is admitting that information
gained from a torture victim is not reliable. This is true
both in Dershowitz' ticking bomb case, where time is an urgent
factor, and his hypothetical Moussaoui case, where it is not,
at least until the very end.
After making the categorical statement, "the tragic reality
is that torture sometimes works" (p. 137), Dershowitz fails
to provide any example where he can unequivocally say that
the information gained through torture could not have been
gained by some other means. The case he cites in the most
detail, one arising from the Philippines in 1995 where a plot
to blow up eleven passenger jets over the Pacific Ocean was
foiled, involved sufficient time for authorities to investigate
the plot based on information received. Dershowitz does not
elaborate on the facts of this case, which involve the torture
Abdul Marud. The fact is that Marud was arrested by the
authorities following a fire that started in his apartment.
The fire was started as a result of Marud mixing chemicals,
which was suspicious activity in the first place. The authorities
found the evidence of the bombing plot on Marud's laptop computer.
Marud was tortured for 67 days. Clearly, time was not a matter
of urgency, as it is in the ticking bomb scenario. As in Dershowitz'
hypothetical case involving Massaoui, the authorities in the
Marud case began with time to pursue leads without resorting
to extraordinary methods of interrogation. It is entirely
possible that the authorities in this case, using more conventional
methods of investigation consistent with modern standards
of civilized behavior, would have prevented the catastrophe
just the same. It is clear from the facts provided that they
had enough evidence to hold Marud and commence an investigation.
Any claim that torture was necessary to prevent a catastrophe
in this case is not provable.
The final problem with Dershowitz' argument is that it involves
a time-consuming process where time is urgent. In his admirable
attempt to balance the needs of modern society facing a threat
from the likes of Osama with the demands of rule of law in
a democratic society, Dershowitz would not simply have the
authorities torture information out of a suspect, but would
require that the process be given legal sanction and supervision.
Dershowitz revives an old and long discarded concept from
English law, the torture warrant. Torture was used to get
information from unwilling suspects and witnesses under British
law prior to the late eighteenth century. However, as Dershowitz
points out (p. 156), the requirement to convict under English
law a criminal defendant was at that time either the confession
of the accused or the testimony of two eyewitnesses to the
crime; a case built entirely on circumstantial evidence was
insufficient. This no longer applies. Today, a case may be
built entirely on circumstantial evidence; for example, one
of the many murders of which Charlie Manson was convicted,
that of Shorty Shea, was a case where the victim's body was
not found until many years after the trial.
However, Dershowitz does not seek to use torture to gain
a conviction. He is seeking to gain information to prevent
a greater catastrophe. Nevertheless, Dershowitz points out
that under English law, the ability to authorize torture was
tightly controlled by the Privy Council in order to prevent
local authorities from abusing the rights of defendants. This
is the model he would use to institute torture in modern society.
Dershowitz believes that if his recommedations are followed,
torture that would be used only in the most extraordinary
cases. As Dershowitz says (pp. 158-59):
I believe that most judges would require compelling
evidence before they would authorize so extraordinary a
departure from our constitutional norms, and law enforcement
officials would be reluctant to seek a warrant unless they
had compelling evidence that the suspect had information
needed to prevent an imminent terrorist attack.
Nevertheless, Dershowitz does not propose any specific legal
standards for the issuing of a torture warrant. If we were
examine what his hypothetical cases and see what they have
in common, we might arrive at a set of standards that could
possibly be used: the situation at hand is potentially
catastrophic and the loss of great numbers of human lives
is at stake;there is a suspect whose culpability is certain
to a high standard of proof; and there is an element of
urgency in that the attack is imminent and there is no time
to effectively pursue other avenues of investigation.
In the ticking bomb case, this standard might be impractical.
In that scenario, the authorities have only twenty-four hours
to get accurate information about the location of a series
of bombs and defuse them. In this twenty-four hour period,
the authorities would have to first get a warrant from a judge
who would demand before issuing the warrant that they first
prove to him that there is an imminent threat of a catastrophic
event, that the suspect they hold has information that would
prevent the execution of the threat, and that there is no
time to try anything else; then they would have to torture
the suspect; and then, since information gained from a suspect
under torture must be regarded as unreliable, verify any information
he provided. Perhaps after all that is done, they will still
have time to defuse the bombs. However, it might be more practical
to evacuate any building that even is remotely suspected of
being a target, the entire city if necessary. The use of torture
with all its trappings in the ticking bomb scenario becomes
a reductio ad absurdum. The time-consuming processes of obtaining
a warrant, extracting information from the suspect through
torture and verifying the information simply defeat the purpose
of interrogating the suspect.
Dershowitz' hypothetical case involving Zacarais Moussaoui
is a little more problematic, if only because it is a little
more difficult to ascertain from the way Dershowitz lays it
out exactly what the authorities could take to a judge. Here,
too, torture is not contemplated unless the threat is imminent;
therefore, we must apply all the problems that defeat the
ticking bomb case to this one. In addition, unless the authorities
have a better idea of what is being threatened than Dershowitz
provides in the scenario, they couldn't possibly prove that
there is an imminent threat. The judge may want to ask them
why they are holding him in custody with no more evidence
than Dershowitz indicates they have. Here again, it seems
improbable that the authorities have only the faintest information
of a plot with no other details. The FBI agents assigned to
the case in this scenario have been foolishly wasting time
interrogating Moussaoui when they could have been checking
out his every move since arriving in the United States, as
real FBI agents would likely do.
Finally, we have the actual case of Hakim Abdul Marud in
the Philippines, where the use of torture may have prevented
a terrorist attack; however, neither Dershowitz nor his readers
can say with certainty that it did, since nothing suggests
that any other investigative technique was applied. If the
FBI had been holding Marud under these rules, rather than
Filipino intelligence agents with no rules, Marud probably
would not have been tortured. It is clear that when the Filipino
agents began torturing Marud, there was no imminent threat;
after all, no terrorist attack was executed during the 67
days they tortured him. This case can't be use to demonstrate
the strength of Dershowitz' thesis.
Dershowitz has thus failed to prove anything practical is
to be gained by allowing legally sanctioned torture in extraordinary
circumstances. Since the burden of proof is on him to demonstrate
that there is any benefit to altering current international
conventions against the use of torture, the categorical prohibition
expressed by those conventions should thus be respected.
In addition, there are many pragmatic reasons to continue
to oppose the introduction of legally sanctioned torture.
Dershowitz' own arguments are laced with proposals for protections
of the rights of a suspect who faces torture because Dershowitz,
rightly, recognizes that the potential for government abuse
is rampant should torture be allowed. Obviously, many states
choose to disregard international conventions. Dershowitz
(p.153) even observes that only in a democracy committed to
civil liberties can this kind of discussion take place; in
such states as Egypt, Jordan, Burma and Zimbabwe, leaders
are not responsible to popular will and act as they see fit,
often with less concern about national security than the security
of their own hold on power. These states are part of the overall
problem in the world today, not a model for any solution.
Besides traditionally tyrannical regimes, there is a deterioration
of democratic values among the leaders of states that not
long ago seemed on the path to becoming democratic and even
in states long regarded as beacons of democracy. In Russia,
for which so many held high hopes when the Soviet Union collapsed,
Vladimir Putin is running virtually unopposed for President.
Using terrorist attacks from Chechnyan rebels as a pretext,
Putin has contracted civil liberties in Russia. More recently,
opposition presidential candidates have complained of intimidation.
According to the London Observer, Putin is currently
poised to become "the most powerful Russian leader since Stalin."
In the United States, George W. Bush's authority as President
rests not on a clear electoral victory but on a narrow and
dubiously reasoned Supreme Court decision. He has used his
power to enrich his corporations at state expense. Like Putin,
Bush has used the terrorist attacks against his nation as
a pretext to erode civil liberties and, unlike anybody else
except possibly his British ally, Tony Blair, Bush has told
brazen lies to manipulate his country into a war of dubious
Leaders such as Putin and Bush should not be trusted with
the ultimate authority to sanction torture any more than Hosni
Mubarak or King Fahd. Whether any leader, elected or otherwise,
should be so trusted is doubtful.
In the post-September 11 world, in which Mr. Bush's leadership
has eroded America's moral position as a beacon of human dignity,
international humanitarian law has replaced America as the
great progressive hope of humanity. While Bush unilaterally
declares battlefield detainees to be illegal combatants without
rights under the Geneva Conventions and hurls them into dog
kennels at Guantanamo, while his Justice Department drafts
legislation to give him the right to strip an American of
his citizenship, and while he contracts out to nations known
to scorn human rights standards for the purpose of torturing
terror suspects, international humanitarian law that upholds
our hope by declaring categorically that no human being should
be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. This is the ideal to which we should