[no subject]

Why America's top liberal lawyer wants to legalise torture 


JAMES SILVER 



THE grisly revelations of torture and human rights abuses by American

forces in Iraq have come as no surprise to Alan Dershowitz, the most

famous civil liberties and criminal defence attorney in the United
States. 


A year ago, he said American personnel were torturing suspected
terrorists

in Guantanamo Bay, Bagram air base in Afghanistan and the US itself. 


Now, he says: "Of course it would be best if we didn't use torture at
all,

but if the United States is going to continue to torture people, we
need

to make the process legal and accountable." 


Although he has never been one to shy away from an intellectual
punch-up,

Mr Dershowitz's proposal that torture should be "legalised" in the
ongoing

war on terrorism has earned him opprobrium from critics on both sides
of

the Atlantic. What, they ask, is one of America' s most high-profile

liberals doing effectively advocating the use of torture? 


"I'm personally opposed to torture because I think the slippery slope
is

too steep and too dangerous," says the Harvard law professor. 


"But I'm also a realist. Torture is occurring as we speak in the United

States of America and abroad. We are not torturing people to death. We
are

not torturing them promiscuously. But we are torturing. And it's
happening

because we think we can save lives by doing it." 


He continues: "If you accept that premise, the debate becomes a very

different one. Is it worse to do it secretly with deniability as we

re doing it today, or to create a legal system where you have to go to a

judge ... where you have to make a judge get down into the dirt and
sign a

warrant authorising torture with accountability? My own belief is that
in

a democracy, accountability is always better." 


What form might the torture he proposes take? His bespectacled, owlish

face stiffens into a frown. "Torture is a continuum and the two
extremes

are on the one hand torturing someone to death - that is torturing an

enemy to death so that others will know that if you are caught, you
will

be caused excruciating pain - that's torture as a deterrent," he says

without pausing for breath. 


"At the other extreme, there's non-lethal torture which leaves only

psychological scars. The perfect example of this is a sterilised needle

inserted under the fingernail, causing unbearable pain but no possible

long-term damage. These are very different phenomena. What they have in

common of course is that they allow the government physically to come
into

contact with you in order to produce pain. And that's a barrier we
should

not go over lightly." 


Mr Dershowitz, whose clients as a criminal defence attorney have
included

OJ Simpson and Louise Woodward, argues that torture is justified in the

case of a "ticking-bomb terrorist", namely, to force a captured
terrorist

who is withholding critical information to disclose the location of a
bomb

that would otherwise kill or maim many people. 


"If you had a situation where a thousand lives were at stake and we
could

prevent those lives being lost by causing pain to a clear, admitted

terrorist, is that morally wrong? I'm saying that decision has to be
made

by a judge, by the attorney general or by the president himself. In
other

words, by someone with visibility and accountability, not some murky,

low-level secret service or CIA agent without a name." 


Mr Dershowitz cites a recent kidnapping case in Germany in which the
son

of a distinguished financier was kidnapped and the police were given
the

authority to torture the kidnapper in order to coerce him to disclose
the

whereabouts of the boy. Once the kidnapper found out that torture had
been

authorised, he immediately came clean. Tragically, the police arrived
to

find that the boy had died. 


"If you present most people around the world with a case like that,

whether they are civil libertarians or not, they will say go ahead and

torture," Mr Dershowitz claims. "But if you then move it to the next

level, and for example, the terrorist is resisting torture, do you
then do

what [the authorities in] Jordan did in a case in the 1980s, namely
call

in his mother and child? Do you then begin to torture other people in
the

family - innocent people? Most Americans, when asked that question,
draw

the line at torturing the innocent relative." 


Mr Dershowitz says he came across the idea for "torture warrants" while

reading about 16th and 17th century England and France. While the
French

were torturing "virtually everybody", the English Privy Council
instituted

on warrants. This led to about 100 people being tortured over the
course

of a century. 


He describes the English system as "under centralised control 

 more visible and thus more subject to public accountability" than the

French, which meant that "the English were able to eliminate torture
much

more quickly". 


He attempts to make a distinction between so-called "torture-lite" and

"genuine" torture. "Some of the techniques we are using in Guant

namo and Iraq, as we've seen, I think are torture. But the United
States

supreme court has said that you can lie to suspects - you can make them

think you are going to do things you would never do - and that's not

torture. Torture is a very powerful, emotive word. We should probably

reserve it for the most extreme forms rather than these other more

marginal forms of conduct." 


However, the UN Convention against Torture makes no such distinction.

Article One defines the term as "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." Similarly, international law affirms the

right of every person not to be subjected to "cruel, inhuman or
degrading

treatment". 


The adoption of Mr Dershowitz's "torture warrants" would necessitate
the

US opting out of the treaties to which it is a signatory. 


"Many of the countries who are signatories to the various conventions

routinely torture," he declares. "Egypt, Jordan and the Philippines are

signatories - we know those countries torture. 


"How do we know? Because the United States sends our detainees to those

countries to have them tortured. Hypocrisy is prevailing today. My

suggestion is that if the United States were to authorise torture, we

would have to write a letter to the various signatory organisations
saying

we reserve the right under the convention to exclude the following from

the definition of torture and then we'd list our exceptions. 


"People say 'Oh my God, that will open the floodgates'. I say the
reverse

is true. I believe that would close the floodgates. My view is that

accountability - with records of each warrant granted - will reduce the

amount of torture rather than increase it." 



 Alan Dershowitz, born in Brooklyn in 1938, went to Yale Law School and

was appointed to the Harvard Law faculty at 25. He became the youngest

professor in the school's history three years later. 


He defended Claus von Bulow, convicted in 1982 of attempting to murder

multi-millionaire wife, Sunny, by injecting her with insulin. Helped by

Harvard law students, Mr Dershowitz got the conviction overturned and
von

Bulow was acquitted in a retrial. The story was made into a Hollywood

film, Reversal of Fortune. His latest book, The Case for Israel, is

published by John Wiley & Sons.


This article: 


http://news.scotsman.com/topics.cfm?tid=404&id=582662004 




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