Dershowitz on Waterboarding:
A Blatant Expansion of State Power
by Mike Whitney
is a skillful debater, a capable attorney, and a focussed defender
of Israel. He is also a Harvard professor and a former member of
OJ Simpson's legal defense called the Dream Team.
by Dershowitz appeared on op-ed page of the Wall Street Journal
on November 7, 2007, titled "Democrats and Waterboarding."
In that article Dershowitz makes a spirited defense of waterboarding,
going so far as to say that (he believes) the Democrats "will
lose the presidential race if it defines itself as soft on terror."
Dershowitz thinks the Democrats are headed for trouble if they assume
the "pacifistic stance" that he identifies with Cindy
Sheehan and Michael Moore. By using Moore and Sheehan as examples,
it is clear that Dershowitz accepts the media's attempts to dismiss
them as part of an imaginary "leftist fringe."
holds up ex-New York Mayor Rudolph Giuliani as an example of a candidate
whose popularity has steadily grown because of his "tough"
stance on national security issues. Dershowitz uses the "national
security" hobgoblin in the same way as Bush: to justify government
activities that conflict with our existing laws and basic principles.
It is a neat bit of lawyerly footwork, but unconvincing.
defense, it is true that he does not approve of "the routine
use of torture," but only in the rare situation when it might
be useful in gaining "preventive intelligence information about
imminent acts of terrorism the so-called "ticking bomb" scenario."
But, who decides? Do we bestow this authority on men who have already
proven to be untrustworthy on men who have already created an
industrial scale system of torture in black sites around the world?
Who do we trust with these new powers?
And how do
we know when a so-called "terrorist suspect" is a terrorist
at all? Are we being asked to forgo due process and the presumption
of innocence along with our revulsion to cruel and inhuman treatment?
loves to use the "ticking time-bomb" scenario and trots
it out at every opportunity. It is a very persuasive argument, until
one really examines the implications. José Padilla was supposedly
a "ticking time-bomb," wasn't he? According to the earliest
public statements by the Bush administration, Padilla had smuggled
a nuclear device or "dirty bomb" into the country and
was planning to use it in a terrorist attack against American civilians.
But it wasn't true. The government had fabricated the entire story
and kept him in prison without charges for over 4 years on claims
that were manifestly false. The Bush administration has never offered
an explanation for their lies.
has produced convincing evidence that he was repeatedly tortured
in prison and was, thus, driven insane. And for what? The government
knew that he was not involved in a terrorist plot to kill Americans.
Under Dershowitz's regime, Padilla's treatment would be entirely
justified. Is that what we want?
time-bomb" argument is a way of challenging our core values.
It's a test. It's like asking, "How much are we really willing
to sacrifice for the sake of our beliefs? Are we willing to risk
our lives and the lives of the people we love?" Or are we ready
to "throw in the towel" and hand the government even greater and
more lethal powers hoping that they'll keep us safe?
says, "I am personally opposed to the use of torture."
But that is not true. If he is opposed to torture then how does
he explain his support for "torture warrants"? The two
are mutually exclusive.
Fire: Civil Liberties in a Turbulent Age, he says:
torture would be permitted without a "torture warrant" being issued
by a judge.... An application for a torture warrant would have
to be based on the absolute need to obtain immediate information
in order to save lives coupled with probable cause that the suspect
had such information and is unwilling to reveal it.... The warrant
would limit the torture to nonlethal means, such as sterile needles,
being inserted beneath the nails to cause excruciating pain without
that a respected author and attorney would actually qualify the
type of needles ("sterile") that can be used while conducting
torture. Can we see how outrageous this is?
proves that Dershowitz advocates torture. The support for "torture
warrants" is support of torture. Period. It doesn't matter
if the torture is limited to extreme cases or not. It's barbarism.
More importantly, it is barbarism that is vindicated by the state.
has been defending his position on torture for more than 4 years.
Here are his comments in 2002 from the op-ed page of the San
American law enforcement officers were ever to confront the law
school hypothetical case of the captured terrorist who knew about
an imminent attack but refused to provide the information necessary
to prevent it, I have absolutely no doubt that they would try
to torture the terrorists into providing the information.
vast majority of Americans would expect the officers to engage in
that time-tested technique for loosening tongues, notwithstanding
our unequivocal treaty obligation never to employ torture, no matter
how exigent the circumstances." ("Want to Torture; Get
a Warrant," SF Chronicle 2002)
is mistaken. According to every survey conducted in the last 5 years,
the majority of American people are overwhelming opposed to torture
and I dare say they are equally opposed to cops who take the
law into their own hands and "engage in that time-tested technique
for loosening tongues." What Dershowitz is suggesting here
is deadly serious and paves the way for routine abuses of power
and police brutality. It is a wonder that the Bar hasn't stepped
in and chastised him for his public stance on this issue.
logic is also flawed. His argument can be reduced to this: "The
cops are going to torture anyway, so let's give them the green light
by providing them with "torture warrants"? Isn't that
what he is saying?
This is from
the same article:
democracy, including our own, has employed torture outside of
the law.... Throughout the years, police officers have tortured
murder and rape suspects into confessing sometimes truthfully,
sometimes not truthfully."
is poorly argued. Dershowitz is using the same feeble defense that
schoolchildren use when they're caught breaking the rules: "Everyone
else was doing it." That is not an acceptable defense for torture.
offers this threadbare excuse for waterboarding:
are some who claim that torture is a nonissue because it never
works it only produces false information. This is simply not
true, as evidenced by the many decent members of the French Resistance
who, under Nazi torture, disclosed the locations of their closest
friends and relatives."
is invoking the classic "ends justifies the means" defense,
but not very cogently. What difference does it make if the information
that is extracted through "physical coercion" is of some
utility or not if the system you are trying to defend has been obliterated
by your actions? It doesn't require a finger-wagging patriot or
a moralizing scold to see that state-sanctioned torture means the
end of the republic. There is no such thing as "legal torture."
It is a contradiction in terms. Torture is an assault on the fundamental
rights of man and the rule of law. It is one of the "red lines"
that we don't cross because on the other side is tyranny.
There are certain
basic assumptions upon which our country was founded and the entire
legal and political system rests. These are our core beliefs; they
are not facts. That's why the preamble of the Constitution reads:
"We hold these truths to be SELF EVIDENT" because the
founders posited that these beliefs did not require proof among
civilized people. Among those "assumptions" are the ideas
of "inalienable rights" and the intrinsic value of man.
Inalienable rights can't be casually swept away by a presidential
signing statement or a congressional edict legalizing "torture
warrants" any more than the Congress can haphazardly repeal
habeas corpus by passing the Military Commissions Act. That's beyond
their "pay grade." These officials weren't elected to
rewrite the Constitution, but "to preserve, protect and defend"
it to the best of their ability. These core principles cannot be
changed without destroying the country itself.
Is that the
hidden agenda here; to reshape the nation according to an ethos
that is more disposed to autocratic government?
isn't a security blanket. If we want to minimize the number of terrorist
attacks on American citizens or US institutions; we should stop
using war as an implement of foreign policy. As Noam Chomsky says,
"The best way to stop terrorism; is stop committing it."
That's good advice. We ought to put that on a billboard in front
of the White House so the occupants can mull it over every day on
their way to work.
ruminations on waterboarding offer nothing constructive as far as
national security is concerned. It's just more demagoguery.
I agree with
Dershowitz that "waterboarding cannot be decided in the abstract."
Nor has it been. It has been thoroughly researched and condemned
under the Geneva Conventions, the US military, and every human rights
organization on earth. The issue has already been decided. It is
torture, pure and simple, and no amount of legalistic gibberish
changes a thing.
reason for rejecting torture besides the fact that it is morally
abhorrent, or because it conflicts with our reading of the Constitution,
or even because it abrogates the presumption of innocence, due process,
the right to attorney, habeas corpus and every other principle to
which we claim to adhere.
The real reason
that torture should be rejected is because it confers more authority
on the state than is prudent for the safety and welfare of "We
the people." The state is now and has always been the greatest
threat to human rights and civil liberties. That's truer today
in our post9-11 world than ever before. The state is the
natural enemy of personal freedom.
polemic has nothing to do with his alleged interest in the security
of the American people. That's hogwash. It is an attempt to expand
the authority of the state by softening public attitudes towards
torture. It's a blatant power-grab, pure and simple; and should
be repudiated by anyone who grasps its true meaning.
[send him mail] lives
in Washington state.
© 2007 LewRockwell.com