Why Torture Doesn't Work: A Critique of Alan Dershowitz' Case for Torture
March 11, 2004
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; 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 party.

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, Michael Walzer:

[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 practical.

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 nothing.

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 of Hakim 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 necessity.

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 strive.