Dershowitz: Torture could be justified

WASHINGTON (CNN) --Following the capture of Khalid Shaikh Mohammed, the question has become whether the senior al Qaeda leader will reveal key information about the terrorist network. If he doesn't, should he be tortured to make him tell what he knows?

CNN anchor Wolf Blitzer posed this question to noted author and Harvard University law professor Alan Dershowitz and Ken Roth, the executive director of Human Rights Watch.

BLITZER: Alan Dershowitz, a lot of our viewers will be surprised to hear that you think there are right times for torture. Is this one of those moments?

DERSHOWITZ: I don't think so. This is not the ticking-bomb terrorist case, at least so far as we know. Of course, the difficult question is the chicken-egg question: We won't know if he is a ticking-bomb terrorist unless he provides us information, and he's not likely to provide information unless we use certain extreme measures.

My basic point, though, is we should never under any circumstances allow low-level people to administer torture. If torture is going to be administered as a last resort in the ticking-bomb case, to save enormous numbers of lives, it ought to be done openly, with accountability, with approval by the president of the United States or by a Supreme Court justice. I don't think we're in that situation in this case.

BLITZER: Well, how do you know ...

DERSHOWITZ: So we might be close.

BLITZER: Alan, how do you know he doesn't have that kind of ticking-bomb information right now, that there's some plot against New York or Washington that he was involved in and there's a time sensitivity? If you knew that, if you suspected that, you would say [to] get the president to authorize torture.

DERSHOWITZ: Well, we don't know, and that's why [we could use] a torture warrant, which puts a heavy burden on the government to demonstrate by factual evidence the necessity to administer this horrible, horrible technique of torture. I would talk about nonlethal torture, say, a sterilized needle underneath the nail, which would violate the Geneva Accords, but you know, countries all over the world violate the Geneva Accords. They do it secretly and hypothetically, the way the French did it in Algeria. If we ever came close to doing it, and we don't know whether this is such a case, I think we would want to do it with accountability and openly and not adopt the way of the hypocrite.

BLITZER: All right. Ken, under those kinds of rare, extreme circumstances, does Professor Dershowitz make a good point?

ROTH: He doesn't. The prohibition on torture is one of the basic, absolute prohibitions that exists in international law. It exists in time of peace as well as in time of war. It exists regardless of the severity of a security threat. And the only other comparable prohibition that I can think of is the prohibition on attacking innocent civilians in time of war or through terrorism. If you're going to have a torture warrant, why not create a terrorism warrant? Why not go in and allow terrorists to come forward and make their case for why terrorism should be allowed?

DERSHOWITZ: Well, in fact, we've done that. Of course, we've done that. We have bombed civilian targets during every single one of our wars. We did it in Dresden. We did it in Vietnam notwithstanding these rules. So you know, having laws on the books and breaking them systemically just creates disdain ... It's much better to have rules that we can actually live within. And absolute prohibitions, generally, are not the kind of rules that countries would live within.

I want to ask you a question. Don't you think if we ever had a ticking-bomb case, regardless of your views or mine, that the CIA would actually either torture themselves or subcontract the job to Jordan, the Philippines or Egypt, who are our favorite countries, to do the torturing for us?

ROTH: OK, there is no moral or legal difference between torturing yourself and subcontracting torture to somebody else. They're equally absolutely prohibited.

DERSHOWITZ: But we do it.

ROTH: In the case -- the fact that sometimes laws are violated does not mean you want to start legitimizing the violation by getting some judge to authorize it. Imagine, you're always thinking about the U.S. Supreme Court, but any rule you apply to the United States has to be applied around the world. Do you want Chinese judges authorizing torture of say, Muslim dissidents?

DERSHOWITZ: It wouldn't make any difference. They just torture anyway. It wouldn't make any difference. They torture now.

ROTH: Once you open the door to torture, once you start legitimizing it in any way, you have broken the absolute taboo. President Bush had it right in his State of the Union address when he was describing various forms of torture by Saddam Hussein and he said, "If this isn't evil, then evil has no meaning."

[Karl Note:  Keep in mind that Mr. Dershowitz is a very well known liberal and torture is not the usual advice of liberals -- I think Dershowitz is taking this controversial stand for a covert reason.  He ties torture to some "public figure issuing a 'torture certificate.'  If that were ever the policy I cannot imagine any leader who would be willing to admit that he issued such a certificate.  In effect, Dershowitz has tried to preempt this issue so that it would never become law.

But, he does raise the issue, and it is worth presenting sane views.

Let's say that a "bad man" has kidnapped my wife and all six of my children.  He kills one of my children and sends me the severed head.  He then tells me that he intends to kill each of the other children, slowly, by torture, and then he will rape and torture my wife.  He has proven he can do these things.  Perhaps I even have a photo of him -- there is no doubt that I can identify him if I find him.  I've turned this all over to the police, but I see no results or success.

Then, he sends me a note, saying that one of my children has been locked in an underground vault with no fresh air, and will suffocate in 24 hours.  Then, 24 hours later he sends me the location.  I go and find one of my children dead, suffocated.  I tell the police?  They can not get any clues -- no help.

He then writes me that he is going to do the same to all the rest of the family, one at a time, and send me notes as he has done.  I would probably give this note to the police, but by now I feel justified that they will not be able to stop him.

Now, I find him on the street.  I am strong, and "capture" him, handcuffs, if you will.  He has with him an already written note for me that another of my children is now locked in an air-tight vault, with 5 hours of air left for him before he suffocates.

Should I turn him over to the police?

Should I try to beat him into telling me where my family is?

Should I use torture?

I know what my answer is.  I may not know what torture is likely to be effective, but if I knew that data, and could "buy" that service for $10, would I?  (Rule out, in this hypothetical example my turning the "professional torturer" to the police.  On the scale of countries, and governments, there is no police department who can catch this guy quickly enough, or even stop the "professional torturer" from doing his thing.)

There IS a form of 100% effective torture. The guy won't even be conscious of or be aware of any pain.  He will not die.  He will "come out of this" having giving all his secrets, including locations of the family, and won't even remember he told all.  Yes, he will have been harmed, with drugs and hypnosis, and with electronic pain that he won't "remember," but he is in a condition not much different than he had been.  You could say that he would have "mental problems" after this, but these problems would not prevent him from living and working.

Is this possible?  Yes.

Would I use this, in the above situation?  Darn right!

Do I trust Pres. Bush to make this judgment?  Yes.  Darn right!

I don't want a public "torture certificate," because I don't want to advertise this type of torture -- it is all the better when it is known by only a few, and hardly anyone believes it is being done, and those who DO IT?  They are a very small, secret group that keep things quiet.

They have to be authorized by a very high source, not the President, and never publicly.

What would you do?

Turn the guy over the police and expect that your child will soon be dead, and probably all the rest of the family?  The police won't be using torture, it's too controversial.

BLITZER: Well, let me interrupt, Ken. Let me ask you about a hypothetical case. Professor Dershowitz talks about it in one of his articles and one of his books. There's a terrorist attack. A lot of people have just been killed in New York. They capture one of the terrorists, who says, "Guess what, there's another bomb out there, it is going to kill a lot more, but I'm not telling you where it is."

ROTH: Yes, that's the ticking-bomb scenario, which everybody loves to put forward as an excuse for torture. Israel tried that. Under the guise of just looking at the narrow exception of where the ticking-bomb is there and you could save the poor schoolchildren whose bus was about to be exploded some place. They ended up torturing on the theory that -- well, it may not be the terrorist, but it's somebody who knows the terrorist or it's somebody who might have information leading to the terrorist.

[Karl Note:  In my set of morals when you see a crime and don't report it, you are as guilty as the guy who does it.  When you have evidence of a crime, you have a moral duty to report what you know.  I guy who just participated in a terrorist attack, no jury needed, is a prime candidate for execution.  If he is such a candidate, he is also a prime candidate for torture.

Whether your certainty that someone "knows" about a crime or a future crime is 100% is not for your or me to decide. Someone has to decide that issue.  I hope he does right.  In a time of war, such as now, "rights" to life are at least in limbo, if not suspended.]

They ended up torturing say 90 percent of the Palestinian security detainees they had until finally the Israeli supreme court had to say this kind of rare exception isn't working. It's an exception that's destroying the rule. We have to understand the United States sets a model for the rest of the world. And if the United States is going to authorize torture in any sense, you can imagine that there are many more unsavory regimes out there that are just dying for the chance to say, "Well, the U.S. is doing it, we're going to start doing it as well."

[Karl Note: Roth may not like my example, but in my example there is no doubt about the guy's guilt, and the early prospective death of my family.

The concept of "no doubt" may well have shades of gray, but there is a lot of "dark gray" that is very close to absolute black. 

It would take a very emotionally stable person to make such a judgment -- when he does it on behalf of a nation, but if no one can do this? Then that type of terrorism will surely come among us -- if only because it would such a "good weapon" to create terror.

I do not agree with  Dershowitz that this should be publicly acknowledged. There are some jobs that MUST be delegated, and we MUST be able to trust someone with decisions such as this.  Such action, like most covert action, is done "outside the law" and is never acknowledged or admitted.

Surely we have been doing "black operations" for years.  If I knew about them I might disagree, but they system still needs to be in place.  If any fixing is needed, then it is electing people we can trust -- Clinton was certainly not such a man.

It is not, after all, a matter of whether one child might die, but whether the terrorists will now have a new tool of terror -- announcing in advance five cities to be bombed, and bombing only one of them. Then a month later, announcing five bridges to be bombed, and doing two of them.

If we catch the guy who we SAW planting a bomb and we put him in jail (only) and the notes and bombings continue?  Will we be content with the "vigorous interrogation" techniques for this guy.  Maybe he doesn't know anything useful?  He has already forfeited his life for his past crime.  If there is a chance to get more data from him, prevent more bombs, can we use torture?  If we are wrong, and he knows nothing, we made a mistake that did cost him his life.  Yes he suffered before he died.

But, if the torture technique does NOT kill him, and even leaves him rather fully functioning, would it be "kinder" and therefore OK?  The current apparent willingness to use "truth serum" leads directly this more effective technique -- the drug PLUS hypnosis and pain while "under."

Pain, Drug and Hypnosis have long been known to psychiatrists as a technique for implanting, and getting "truth" out of a person who would not otherwise be willing.  The drugs and hypnosis don't leave a very terrible condition.  You may not believe it, but the body can experience pain, while it is unconscious, that pain gets shoved into the "subconscious" and is NOT remembered when the guy is "out of the situation."  Particularly if he is kept in a drugged and hypnotized condition for a relatively long time -- the pain will be long gone.  He would be well fed and cared for during his drugged condition.

It is also well proven that you can "program" someone to talk and act in accordance with new "orders."  The casual observer would never know that this person is programmed. So, this guy could have been caught months ago, programmed to gather data, and arrested in public, and suddenly all the "new" data would be released.

IF such torture were available, can you think we would not be using it?  The CIA has already used extensive mind control techniques -- and only the tip of that iceberg has ever been exposed.  If you ask them now? I'm sure they would say they don't now do such things.  This MUST be hidden from public view.

DERSHOWITZ: And I think that we're much, much better off admitting what we're doing or not doing it at all. I agree with you, it will much better if we never did it. But if we're going to do it and subcontract and find ways of circumventing, it's much better to do what Israel did. They were the only country in the world ever directly to confront the issue, and it led to a supreme court decision, as you say, outlawing torture, and yet Israel has been criticized all over the world for confronting the issue directly. Candor and accountability in a democracy is very important. Hypocrisy has no place.

[Karl Note:  Like a great majority of people, Dershowitz calls us a "democracy" but, in fact, we are a "republic."  One big difference is that, in a republic, we elect someone close to home, who elects another, a bit further away, and finally, after several of these layers, a president is elected by a "congress."  We DO NOT try to function where every voter helps decide on every issue -- we "delegate" decisions, and there should be no problem in delegating the decision on when to use torture. 

Sure, we may make an error, but how much worse an error could we make than electing Clinton? Even half of our population thinks he was a good guy!  So, popularity does not mean the guy will make good decisions, and a republican form of government does not either.  But, at least a republican form of government can allow a top leader to make his decisions in private, or perhaps share them ONLY with that small group who elected him.  The details would be important, but I'm not trying to settle those here and now.

How would people not see the simple logic of this?  They would have been educated in our present system, without phonics, and trying to pass judgment before they understood the applicable data. The entire destruction of the American education system is fully revealed, the "gift" to us from psychology -- HERE.

ROTH: So let's learn the lesson from the Israelis, which is you can't open the door a little bit. If you try, you end up having torture left and right. The other alternative, rather than legitimizing with torture warrants, is to prohibit it and prosecute the offenders. And we have murder on the street every day. We don't ask for murder warrants.

BLITZER: Ken, let me just get back to that ticking time bomb scenario. You would -- you could morally justify letting this terrorist that you've captured remain silent and allow hundreds of people to die?

ROTH: Look, we just heard from the chairman of the Senate Intelligence Committee. You just had him on your show, Wolf, who said the interrogators at Bagram Air Base or wherever Mohammed is, they don't need torture. They have other, legitimate ways of getting at the truth. They're listening in through various wiretaps and the like.

[Karl Note:  You notice that Roth does NOT answer the question.

This claim quoted from Bagram Air Base COULD be a simple cover-up -- if the pain-drug-hypnosis could get the truth out of this guy in 100 hours, and the "traditional" vigorous interrogation techniques might take years, and you would never know if you "had it all,"  what would you choose?  I don't believe the government many times.  It does not surprise me to think they are lying.  I don't have their level of responsibility.  I don't want to be lied to, but I also don't want my town blown up.

Yes, we are seeing our civil rights eroded, but yes that is the price I am willing to pay for security just now and because I feel that I MUST trust the President to handle this.  I am also willing only because I have a better plan for world peace than war with Iraq, but MY PLAN can't be implemented fast enough to stop Iraq -- so the war is necessary.

There is this much better solution.  I offer THIS as a way out of this mess -- so that torture is never needed. Click and read an entire website of mine -- promoting a plan for world peace.

A friend who helps me with the "click here" reference just above read this and suggested something I agree with totally:

"Although it may be true that in an acute situation one might have to take action to defend oneself against the insanity of another, it is also true that in the long run we simply must evolve as a species to a higher level of behavior. Our goal is to create an uplift in the decency and integrity of man and a reversal of the decay of society."

ROTH:  Torture is not needed. If you start opening the door, making a little exception here, a little exception there, you've basically sent the signal that the ends justify the means, and that's exactly what Osama bin Laden thinks. He has some vision of a just society. His ends justify the means of attacking the World Trade Center. If we're going to violate an equally basic prohibition on torture, we are reaffirming that false logic of terrorism. We are going to end up losing the war ...

[Karl Note:  After my first drafting this article I have heard MANY references to this issue on different news and talk shows.   This is NOT a closed issue in our society. Yes, a poll would probably find a large majority opposed to use of torture, but my responsibility as President would be to future survival of our society, not to any opinion poll.  I would never claim to have the moral authority to torture some stranger to my life, but the guy who kidnapped MY family?  It would be a moral outrage for me to FAIL to use any means, including torture, to allow my family to live at the expense of torture or death of someone about whom I have absolute certainty of guilt.

Our society?  I was an Army Officer for more than two years, never saw combat. But, when the opportunity for Ranger Training came up -- I jumped at it.  There was a time when the "ranger patch" was very rare for the students who went through Ranger Training. When I went through Ranger School, all graduates got the patch.  I certainly wore my Ranger Patch on my Army Uniform with great pride.  Does that color my thinking on torture?  I suppose.  I've been a patriot all my life.

When I see the "woman in pink" protesting the war and claiming that woman in Iraq have better "rights" than other Arab countries, how do I explain them?  I simply say that they are stupid. They may also be anti-American, but basically they are stupid.  They were educated in a system designed to make them stupid -- fully described HERE.  Will I lose customers because of these sentiments?  It's OK!

What about the appeaser who asks, "Well, Karl, wouldn't you admit you could be wrong and pick the wrong guy to torture?"  My moral responsibility to protect myself from harm is absolute -- self defense is an allowed motive.  I would expect to be called on in the court of justice if someone disagrees with my decision -- and if some jury finds me wrong, I would expect to pay the penalty.

Even the law would extend that to my killing some stranger who was obviously threatening another person with death.

The possibility that I would be wrong could and would be settled in court.  You are never above the later rule of law.

The current prisoner may not elicit much public outcry, but the capture of bin Laden is yet another matter, as discussed in the Wall Street Journal.

While Washington has been in no hurry to prosecute other al Qaeda prisoners, some of whom have been held without charges for more than a year "there would be a hue and cry for his head on a stake, and it would be really hard politically to stem the tide on that front," says one person involved setting up the tribunals. (Source)

The public law may never come to condoning torture in any circumstance, but I would not condemn it.  If someone chose to torture one of my family after having made a 'wrong decision' then he has made that wrong decision. I would never seek revenge, but I would seek justice.  I would be willing to use torture to PREVENT their death, but not revenge it.

As much as I despise Peter Arnett for his betrayal of American trust -- appearing on Iraqi State TV to bash the war, he is NOT a candidate for torture -- jail perhaps.  See article about HIM.

Torture is never justified as revenge, only protection.]