Alan Dershowitz on Waterboarding: One Democrat's Response

Posted by Damozel  (photo by Sandeep Thukral) | Here's Harvard law professor Alan Dershowitz astonishing me in The Wall Street Journal:

Although I am personally opposed to the use of torture, I have no doubt that any president--indeed any leader of a democratic nation--would in fact authorize some forms of torture against a captured terrorist if he believed that this was the only way of securing information necessary to prevent an imminent mass casualty attack. The only dispute is whether he would do so openly with accountability or secretly with deniability. The former seems more consistent with democratic theory, the latter with typical political hypocrisy.(Democrats and Waterboarding)  

Everyone who argues in favor of torture starts out by saying they are personally opposed to it.  Why?  If you think it might be justifiable in certain narrowly defined circumstances, just say so up front.  "I am personally opposed to the use of torture except in certain narrowly defined circumstances." 

Dershowitz has this to say to the many, many experts who say that torture doesn't work:

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. (Democrats and Waterboarding)

The Nazis?  Seriously?  The Nazis?  First, what do the Nazis have to do with us?  Second, the Nazis resorted to methods---and there are many---that were bloodier and more terrifying and even more painful than waterboarding, since they didn't have any interest in keeping the victim alive at the end.  I'm sure the torture technology devised by the Nazis worked beautifully. 

Dershowitz is arguing that if the Democrats are soft on terror (i.e., take a stand against waterboarding under any circumstances) they may lose the presidential election.  It doesn't seem to occur to him that many Democrats would PREFER for the party to lose the election than to compromise on this principle.   If they lose on that basis---if Americans really believe that thinking waterboarding might be justifiable in "narrow circumstances"---then they lose.  We'll just have to carry on the fight from the sidelines, as God knows we've plenty experience in doing.

He argues that there are cases where swift action is necessary to prevent the deaths of the innocent then---weirdly---offers an example of swift action by the Israelis that didn't require them to waterboard or torture anyone. 

Recently, Israeli security officials confronted a ticking-bomb situation. Several days before Yom Kippur, they received credible information that a suicide bomber was planning to blow himself up in a crowded synagogue on the holiest day of the Jewish year. After a gun battle in which an Israeli soldier was killed, the commander of the terrorist cell in Nablus was captured. Interrogation led to the location of the suicide bomb in a Tel Aviv apartment. Israel denies that it uses torture and I am aware of no evidence that it did so to extract life-saving information in this case.(Democrats and Waterboarding) 

Note that the above anecdote tends to suggest---if anything---that lawful interrogation techniques are effective.  But then Dershowitz asks what in the same circumstances would have been the right thing to do if "lawful" interrogation fails.  I'd have thought that the question answers itself.  He thinks differently.

But what if lawful interrogation failed to uncover the whereabouts of the suicide bomber? What other forms of pressure should be employed in this situation?(Democrats and Waterboarding)  

I don't know, unlawful ones?  Is that how I'm meant to answer this Socratic poser?

When an instructor from SERE says that waterboarding is torture, is unreliable, and should not be used by our government ever, I am prepared to believe him.  When intelligence officials and military lawyers, not to mention John McCain and Colin Powell, decry the use of waterboarding as illegal as well as inhumane and unreliable, I give great weight to their arguments because they have direct experience.

But Dershowitz thinks there are other governmental interests that might sometimes outweigh the interest in...what?  Not having the government place itself on the same level as our enemies?  Not violating U.S. and international law?  Not putting our troops in jeopardy by showing that we don't accept the limits imposed by the Geneva Conventions?

But Dershowitz, like Mukasey, just isn't convinced that waterboarding---depending on the circumstances--- violates the law. "Under prevailing precedents, some of which I disagree with--the court must examine the nature of the governmental interest at stake, and the degree to which the government actions at issue shock the conscience, and then decide on a case-by-case basis. In several cases involving actions at least as severe as waterboarding, courts have found no violations of due process.  (Democrats and Waterboarding; emphasis added)  

Yes, and during World War II the Supreme Court thought that Executive Order 9066, under which Japanese of American ancestry were interned in prison camps, was backed up by a sufficient governmental interest.  In the 1944 case Koramatsu v. United States, Justice  Black, writing for the Court wrote:

To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders -- as inevitably it must -- determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot -- by availing ourselves of the calm perspective of hindsight -- now say that at that time these actions were unjustified. (Koramatsu v. US)

Even then, not everyone agreed.  Justice Murphy, dissenting, replied:

[T]his forced exclusion was the result in good measure of this erroneous assumption of racial guilt rather than bona fide military necessity is evidenced by the Commanding General's Final Report on the evacuation from the Pacific Coast area. In it he refers to all individuals of Japanese descents as "subversive," as belonging to "an enemy race" whose "racial strains are undiluted," and as constituting "over 112,000 potential enemies ...at large today" along the Pacific Coast. In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal, or had generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise by their behavior furnished reasonable ground for their exclusion as a group.

Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence....

No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights.... To give constitutional sanction to that inference in this case, however well-intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow....

I dissent, therefore, from this legalization of racism.  (Koramatsu v. US)

Courts are made up of human beings and they sometimes get things wrong.  And of course I recognize that this is a different issue.  I am bringing it up to remind people of a single point:  Courts sometimes make decisions that shock the consciences of the sane and reasonable Americans of later generations.

Prevailing precedents in the courts---some of which Alan Dershowitz concedes he disagrees with---whether or not correct on legal grounds may be wrong on moral ones. Their consciences are perhaps not always easy to shock, since they routinely deal with the worst human actions.   I can't live with a rule that looks at the question of waterboarding "case by case."  Then the outcome will depend on the conscience of a particular judge. 

I would venture to argue that an act which shocks the conscience of military and intelligence officials---many or most of whom have had to gazed first-hand into the pit and who know what torture looks like, sounds like, smells like and (in some cases) feels like---would also shock my conscience and the conscience of other sane, reasonable Americans who don't believe that context or indeed the evil intent of the recipient makes the infliction of a cruel act less evil. 

The members of the judiciary committee who voted against Judge Mukasey, because of his unwillingness to support an absolute prohibition on waterboarding and all other forms of torture, should be asked the direct question: Would you authorize the use of waterboarding, or other non-lethal forms of torture, if you believed that it was the only possible way of saving the lives of hundreds of Americans in a situation of the kind faced by Israeli authorities on the eve of Yom Kippur? Would you want your president to authorize extraordinary means of interrogation in such a situation? If so, what means? If not, would you be prepared to accept responsibility for the preventable deaths of hundreds of Americans?  Democrats and Waterboarding)   

Ah, so that's the test:  nonlethal?   Because my bar is lower:  is the method of interrogation inhumane and cruel, would it violate the Geneva Conventions, would it violate existing law, would witnessing it in process against another human being shock the conscience of a sane, reasonable, adult America? 

I trust that any Democrat asked the question which Dershowitz proposes would respond by saying, "Deaths that could be prevented by breaking the law are not "preventable deaths."  I would take responsibility for using every legal means within my power to get information.  I would not break the law of the land---I would not violate international law---to do so."

Torture is wrong because it's wrong because it's wrong.  Civilized nations view it as morally abhorrent.  "If it would save American lives----" No.  This is the home of the brave as well as the land of the free.  Americans---or at least Democrats---must consider some principles (being better than our enemies, for starters) worth the risk. 

As to Dershowitz's point that the Democrats may lose the election if they are perceived as "soft on terrorism," if my compatriots have really grown too frightened (cowardly) or too inured to cruelty through videogames and television, they may elect the waterboard-defending Republicans because that will be the government they deserve.  But my party, I hope and trust, under the leadership of people such as Patrick Leahy, will continue to take a stand against the use of cruel and inhumane practices even against the worst of the worst.  My party will not confuse taking a stand against torture with being soft on terrorism.  I am rarely certain of anything but I am certain of this.

For the definitive statement of a Democrats' right view of torture, I'd refer you to to Senator Patrick Leahy.

Memeorandum has other responses, many of which make me wonder if Giuliani isn't the president we deserve.   And my God, how this saddens me!

RELATED BN-POLITICS POSTS

US Military & Intelligence Officials Weigh in on Torture Issue (Deaf Ears Dept)

Giuliani and McCain Go Head to Head Over Torture

Feingold Will Oppose Mukasey; Feinstein Won't.  And Why:

Is Waterboarding Torture? Part 5:  Schooling the Senate

Bush Administration Blocked Critic Who Experienced Waterboarding

Is Waterboarding Torture? Part 4:  Schooling Mukasey

Is Waterboarding Torture?  Part 3:  Let's Ask the Experts

Is Waterboarding Torture?  Part 2:  Schooling Rudy

Giuliani:  Is Waterboarding Torture?  "It Depends on Who Does It."

Mukasey's Views on Torture:  More Flexible than Advertised

Romney's Pick for National Security Adviser Would Torture 'in a Heartbeat.'

I say 'Torture'; You Say 'Harsh Interrogation Techniques'.... (Updated)

Comments

[tjproudamerican]

I am a Democratic Party member and I think Dershowitz may be onto something:

How about Democratic Party Candidates pledging that they are "personally against the use of torture" but because they are all Big He Men, they want to see the USA use torture all the time and everywhere, even on innocent people.

That way America will know Democrats are tough son of a guns!

Torture: It's not just for Nazis anymore! In fact, all the cool kids are doing it!

[thubten]

If you want to know about real torture, ask tibetans who have been guests in Chinese prisons, where a cattle prod has been inserted in their mouth, and other orifaces, and are now toothless.
Waterboarding is not torture, does not hurt, causes no permanent damage, and is just fine for Khalid Sheik Mohammed.
No wonder that Alquida voted straight Democrat.

[cockney robin]

Sorry; which election was that where AQI voted "straight Democratic"? Heh. *Someone* is listening to a bit too much 'Talk Radio.'

Our position is: what's good enough for the baddies to use ISN'T good enough for the US to use. That there are other and more painful methods than waterboarding used by some regimes isn't really germane.

We'd humbly submit that a method which the now attorney general of the US called in his testimony before Congress "morally repugnant" (and which a number of US interrogators claim isn't the most effective means of getting information) shouldn't be used, end of.