Dershowitz on Waterboarding:
A Blatant Expansion of State Power

by Mike Whitney
by Mike Whitney

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Alan Dershowitz 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.

An article 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."

Instead, Dershowitz 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.

In Dershowitz's 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?

Dershowitz 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.

Padilla's attorney 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?

The "ticking 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?

Dershowitz 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.

In Dershowitz's book, Shouting Fire: Civil Liberties in a Turbulent Age, he says:

"No 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 endangering life."

It's shocking 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?

The excerpt 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.

Dershowitz 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 Francisco Chronicle:

"If 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.

Moreover, the 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)

Dershowitz 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.

Dershowitz's 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:

"Every 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."

Again, this 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.

Finally, Dershowitz offers this threadbare excuse for waterboarding:

"There 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."

Dershowitz 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?

The Constitution 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.

Dershowitz's 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.

There's another 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 post–9-11 world – than ever before. The state is the natural enemy of personal freedom.

Dershowitz's 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.

December 13, 2007

Mike Whitney's [send him mail] lives in Washington state.

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