Why Torture Doesn't Work

[Jack Rabbit]

Note: This piece was published on DU's home page in March. It seems more relevant now in light of the revelations of torture at Abu Ghraib and elsewhere.

I ask that this not become a discussion of Mr. Dershowitz' views on the Israeli-Palestinian conflict. Those views are not relevant here. If anybody feels that a discussion on Dershowitz' views on torture and the Levantine conflict would be fruitful, then that person should feel free to open a thread in the proper forum. Just don't discuss it here.

My view is that what Mr. Dershowitz' theories about torture have nothing to do with what happened in Abu Ghraib. One may agree with him (as I do not) and still condemn what happened there.

However, Mr. Dershowitz is presenting a thesis that torture has a limited place in the civilized world. That discussion is open.

From Democratic Underground
Dated Thursday March 11

Why Torture Doesn't Work: A Critique of Alan Dershowitz' Case for Torture
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 necessary.
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, the Third Geneva Convention (1949; Articles 3, 17, 87 and 130) prohibits its use against prisoners of war and the Fourth Geneva Convention (1949; Articles 3, 32 and 147) prohibits 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 party . . . .
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.

Read more.

[Alerter_]

1. Dershowitz has chosen to be sub-human

This says it all right here:

"Dershowitz feels it is incumbent on him to lead a discussion on a choice he feels is unpleasant but necessary. Torture is regarded by progressive civil libertarians as an abomination that every civilized nation should outlaw. Modern international humanitarian law categorically prohibits its use."

Dershowitz has chosen to make himself into a sub-human animal. We all have free will and Dershowitz made his choice.

[iamjoy]

2. But It Can

First, I'm not sure there's anything wrong with using so called "truth serum" in a case like Dershowitz describes, to extract information as long as it isn't used for criminal prosecution (because it is a violation of 5th Amendment rights). Is sodium pentothal harmful?

And what is mental torture? The old good cop/bad cop routine? What about the plea bargain system? You know, "if you confess to the murder you might get life in prison, if not, we'll seek the death penalty." Any debates about the constitutionality of the death penalty itself aside, is it not mental torture to threaten some one with physical harm or loss of life?

[Jack Rabbit]

3. Truth serum may be a gray area

Even so, it is not regarded as 100% reliable.

A plea bargain is by no stretch of the imagination torture.

Threatening torture may be construed as torture.

Again, Dershowitz specifies in his book some methods he would use, such as sterile needles under fingernails. I have my doubts that sort of thing would be as effective as he thinks. My thesis is that it would be too unreliable to be practical. A terroirst could say anything, but anything he says would still have to be verified. In the ticking bomb scenario, time is on the side of the terrorist.

[iamjoy]

4. True

Some types of torture are unreliable because people will confess to anything to get out of pain, but mental torture is a more gray area.

[Jack Rabbit]

5. Mental torture is still torture

It still doesn't work. In fact, it is probably less practical for the circumstances that Dershowitz outlines than physical torture.

To quote from the article:

If we were examine (Dershowitz') 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.

If there is an element of urgency and I thought torture would be effective, then I wouldn't waste time with some tedious mental process. I'd go straight to physical pain.

If there is no element of urgency, then torture is unnecessary. Whatever the authorities are looking for can be discovered through conventional investigative methods.

At this point, we might like to engage in a little Socratic method. What do you mean by mental torture? I would probably consider sensory deprivation physical torture. Mental torture would be defined as something to cause more emotional anguish than physical pain. For example, mental torture would be when the detainees at Abu Ghraib were forced to pose for photographs in what appeared to be homosexual acts and the authorities threatened to show the photos to their families. An example of something that is more clearly out of bounds that would cause no direct physical harm to the detainee would be threatening to harm one of his family members. This involves physical violence or the threat of physical violence, although it is designed to cause the detainee emotional anguish rather than physical pain.

[Jack Rabbit]

6. Bump

!!

[NNN0LHI]

7. With a couple of wire ties and a pair of pliers I could get anyone to...

...say anything.

Don