Reply #19: Interesting reply

[Jack Rabbit]

If the Hamas' behavior doesn't justify Israel's, there seems little point in discussing the relative merits whose torture is kinder, gentler.

As for your proposal of a "moderate level of physical force", I don't believe that route could be justified on moral or pragmatic grounds, either.

From Democratic Underground
Dated March 11, 2004

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 . . . .
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.
(P)rogressive 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 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 . . . .
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.

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