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Author Topic: Alan Dershowitz: Should Torture be legal?  (Read 11175 times)
Xilren's Twin
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on: March 24, 2004, 01:52:42 PM

Not sure where to put this but I though this might be a good place.  It's rather old but came to my attention recently, so in light of the terrorism discussions, here you go. (if this it too old, feel free to delete it)

In the wake of 9/11, Harvard Law Professor Alan Dershowitz has caused some controversy by openly discussing whether or not government sanctioned torture should exist in the US.  He did an opinion peice in the LA Times in november of 2001, and apparently goes into greater deatail in his book "Why Terrorism Works: understanding the threat, responding to the challenge ".  His basic gist seems to be non leathal torture could be used to try and prevent castrophic loss of life, so long as it was done under the rule or law, supervised, and the evidence gained thereby cannot be used in criminal prosecution.

This is a cut and past of the LA Times peice (site requires registering to access directly).

Quote
The FBI's frustration over its inability to get material witnesses to talk
has raised a disturbing question rarely debated in this country: When, if
ever, is it justified to resort to unconventional techniques such as truth
serum, moderate physical pressure and outright torture?

The constitutional answer to this question may surprise people who are not
familiar with the current U.S. Supreme Court interpretation of the 5th
Amendment privilege against self-incrimination: Any interrogation technique,
including the use of truth serum or even torture, is not prohibited. All
that is prohibited is the introduction into evidence of the fruits of such
techniques in a criminal trial against the person on whom the techniques
were used. But the evidence could be used against that suspect in a
non-criminal case--such as a deportation hearing--or against someone else.

If a suspect is given "use immunity"--a judicial decree announcing in
advance that nothing the defendant says (or its fruits) can be used against
him in a criminal case--he can be compelled to answer all proper questions.
The issue then becomes what sorts of pressures can constitutionally be used
to implement that compulsion. We know that he can be imprisoned until he
talks. But what if imprisonment is insufficient to compel him to do what he
has a legal obligation to do? Can other techniques of compulsion be
attempted?

Let's start with truth serum. What right would be violated if an immunized
suspect who refused to comply with his legal obligation to answer questions
truthfully were compelled to submit to an injection that made him do so?

Not his privilege against self-incrimination, since he has no such privilege
now that he has been given immunity.

What about his right of bodily integrity? The involuntariness of the
injection itself does not pose a constitutional barrier. No less a civil
libertarian than Justice William J. Brennan rendered a decision that
permitted an allegedly drunken driver to be involuntarily injected to remove
blood for alcohol testing. Certainly there can be no constitutional
distinction between an injection that removes a liquid and one that injects
a liquid.

What about the nature of the substance injected? If it is relatively benign
and creates no significant health risk, the only issue would be that it
compels the recipient to do something he doesn't want to do. But he has a
legal obligation to do precisely what the serum compels him to do: answer
all questions truthfully.

What if the truth serum doesn't work? Could the judge issue a "torture
warrant," authorizing the FBI to employ specified forms of non-lethal
physical pressure to compel the immunized suspect to talk?

Here we run into another provision of the Constitution--the due process
clause, which may include a general "shock the conscience" test. And torture
in general certainly shocks the conscience of most civilized nations.

But what if it were limited to the rare "ticking bomb" case--the situation
in which a captured terrorist who knows of an imminent large-scale threat
refuses to disclose it?

Would torturing one guilty terrorist to prevent the deaths of a thousand
innocent civilians shock the conscience of all decent people?

To prove that it would not, consider a situation in which a kidnapped child
had been buried in a box with two hours of oxygen. The kidnapper refuses to
disclose its location. Should we not consider torture in that situation?

All of that said, the argument for allowing torture as an approved
technique, even in a narrowly specified range of cases, is very troubling.

We know from experience that law enforcement personnel who are given limited
authority to torture will expand its use. The cases that have generated the
current debate over torture illustrate this problem. And, concerning the
arrests made following the Sept. 11 attacks, there is no reason to believe
that the detainees know about specific future terrorist targets. Yet there
have been calls to torture these detainees.

I have no doubt that if an actual ticking bomb situation were to arise, our
law enforcement authorities would torture. The real debate is whether such
torture should take place outside of our legal system or within it. The
answer to this seems clear: If we are to have torture, it should be
authorized by the law.

Judges should have to issue a "torture warrant" in each case. Thus we would
not be winking an eye of quiet approval at torture while publicly condemning
it.

Democracy requires accountability and transparency, especially when
extraordinary steps are taken. Most important, it requires compliance with
the rule of law. And such compliance is impossible when an extraordinary
technique, such as torture, operates outside of the law.


Any thoughts (beyond which method we would prefer to use...)

Xilren

"..but I'm by no means normal." - Schild
WayAbvPar
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Reply #1 on: March 24, 2004, 02:05:43 PM

That reminds me of one of the Clancy books (all the titles are running together in my head right now)- the bad guy has built a nuke he plans to set off at the Olympics, and Clark and Chavez catch up to him just in time to torture the pertinent info out of him (IIRC Mr. Clark breaks a few of his fingers). Details may be a bit fuzzy- been several years since I read it.

What remains with me is the visceral reaction I had to the casual mention of torture. While 'justified' by the situation, I was still taken aback by it being used by the 'heroes'.

Paste that scenario into real life, where people I know and love might be at risk. It becomes slightly more palatable then, but I still find it distasteful to say the least. I worry about handing these powers out willy nilly (since we all know that the police/government are not infallible by any stretch of imagination).

Interesting moral dilemma.

When speaking of the MMOG industry, the glass may be half full, but it's full of urine. HaemishM

Always wear clean underwear because you never know when a Tory Government is going to fuck you.- Ironwood

Libertarians make fun of everyone because they can't see beyond the event horizons of their own assholes Surlyboi
personman
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Reply #2 on: March 24, 2004, 02:05:53 PM

Sorry.  Can't accept it.  I'm content to grant suspects a two month vacation to such fine tourist epicenters as Jordan and Pakistan.  For some individuals I reconcile this as us paying for their Hadj where they can commune with their fellow adherents.

Hypocritical?  I'm only half serious - I don't want us in that business.

I'm fuming today at learning that we had plenty of opportunities to kill Bin Laden from 1996 up to 2001 and CIA officers intentionally "misunderstood" policy that allowed them to assassinate.  I bet we don't repeat that error of policy interpretation in the future.

Assassination I can reconcile, torture I can't.   Mainly because we would be far less likely to assassinate low-level individuals wih a high probability of innocence or at least non-relevance.  Torture? Well Guantanamo demonstrated we're willing to hold thirteen year olds in maximum isolation tanks without benefit of due process for years at a time.
HaemishM
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Reply #3 on: March 24, 2004, 02:46:34 PM

The problem with dismissing torture out of hand is that it really is the only reliable thing that works on fanaticism. For terrorists from the most backwater countries, our prisons are fucking vacation resorts. What threat is a cot with 3 squares a day and cable TV to someone used to being hung upside down by their feet, beaten with rubber hoses and having their testicles electrified? Interrogation only works with an implied  or stated threat to the interviewee, whether that threat be legal punishment or bodily harm.

However, based on the completely assinine group of cluster fucks we have in power, I sure as hell don't want to give them legal cassius belli to torture potentially innocent civilians. Legal stamps of approval on torture, or even turning a blind eye to illegal torture seems to me to contradict the whole idea of "Innocent til proven guilty."

Kylaer
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Reply #4 on: March 24, 2004, 02:48:46 PM

I'm against sanctioning the use of physical torture. Stuff like sleep deprivation and/or psychological actions such as blasting rap music at someone for hours, no problem, but we should stay the hell away from physically hurting people. That was one of the big complaints against Saddam, as I seem to recall...
Nosartur
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Reply #5 on: March 24, 2004, 02:56:53 PM

IMHO torture would only be useful when time is very short.  A good interrogator can almost always weasel out the information they need if given enough time.  Some of the intel that is helping in Afghanistan is no doubt coming out of the interogators in Getmo now.   Of course that does entail a little "harmless" brainwashing.  Also information often recovered from torture is not exact or truthful.  I believe that one of the "guests" of the anoi Hilton had the NVA convinced that the modern American bomb sights used in Vietnam were exactly like the bomb sights on the b-29's of WWII.    

But in no way should torture be sanctioned by the government.  It sets a bad precedent.  Plus there it is definitely not a power I would trust to the likes of Washington DC.

Edit:  To clearify I don't consider psy-ops, the blasting of music or sleep depravation torture.   Actual physical harm is what I was refering to.
Speedy Cerviche
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Reply #6 on: March 24, 2004, 03:14:35 PM

Does torture really work though? Seems to me like it would just lead to people confessing guilt (example. inquisition trials where they tortured witches/heretics until they confessed) or having the people just give out false info.

The best way to get info would be to coerce it out with rewards for legit info, that was the prisoner willingly gives it up, and doesn't get paid until it turns out to be correct.

These people are fanatics, so unless truth serum (I dont really know how effective it is) can coerce information out of them, theyre extremely unlikely to break under torture. Back when christianity wasn't so popular in the roman empire, early converts were going around daring magistrates to execute them, for them, being martyred was the greatest thing, and I doubt these stupid arabs are any different.
ajax34i
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Posts: 2527


Reply #7 on: March 24, 2004, 04:07:40 PM

"You no longer have the right to remain silent.  Anything you try to hide will be tortured out of you by a certified communications officer."

It's a pretty big basic right to give up, especially considering the fact that torture is always performed "until the subject breaks", before guilt is proven, and with no compensation if they "oops, made a mistake."  

To make it legal means to make "information gathered through torture valid in a court of law", which means it will apply to everyone.
nach0king
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Reply #8 on: March 24, 2004, 04:21:56 PM

Putting the caveat "as long as it's done by the rule of law!" in front of torture does not stop it from being torture. It's still beneath us as a Western civilisation. Not to mention that it completely debases both domestic law and inalieable human rights.

This guy is a fucking metrosexual, as are all of his adherents.

-nk
Still on EQ
daveNYC
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Reply #9 on: March 24, 2004, 08:06:16 PM

Quote from: WayAbvPar
That reminds me of one of the Clancy books (all the titles are running together in my head right now)- the bad guy has built a nuke he plans to set off at the Olympics, and Clark and Chavez catch up to him just in time to torture the pertinent info out of him (IIRC Mr. Clark breaks a few of his fingers). Details may be a bit fuzzy- been several years since I read it.

Sum of all fears.  Superbowl.

The NY Times had an article on the subject about a half a year ago (in the Sunday magazine, I think).  It covered the difference between torture and torture-lite, and the fact that the US government seems to be subcontracting out the torture of suspects to governments that have some experience in the matter.

If nothing else, I would like my government to torture their own damn suspects.[/list]
Ironwood
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Posts: 28240


Reply #10 on: March 25, 2004, 03:00:32 AM

Why this even hit the discussion table is totally fucking beyond me.

Just wait until there's a fucking magazine for it.

Medieval Monthly - see our in depth articles on pliers and blowtorches;  Which is right for you ?


Fuck sake.

"Mr Soft Owl has Seen Some Shit." - Sun Tzu
Alrindel
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Reply #11 on: March 25, 2004, 03:42:57 AM

Quote from: HaemishM
The problem with dismissing torture out of hand is that it really is the only reliable thing that works on fanaticism.

Except that it doesn't.  In fact it's less effective on fanatics than it is on "normal" people, because they have core beliefs to help reinforce their resistance.  The only thing pain is useful for is extracting confessions (from anybody, whether or not they happen to be guilty).  If you want reliable information, simple physical torture is the worst way to try to get it.

Then again, it depends on how you define "torture".  If you were submitted to CIA interrogation techniques for a couple of months, you might well say at the end of it that you had been "tortured", although they almost certainly wouldn't have been using Gestapo-type methods, simply because they're not considered to be effective. I think this is the NYT article DaveNYC was referring to, from a year ago.  Some quotes:

Quote
Some American and other officials subscribe to a view held by a number of outside experts, that physical coercion is largely ineffective. The officials say the most effective interrogation methods involve a mix of psychological disorientation, physical deprivation and ingratiating acts, all of which can take weeks or months.

"Pain alone will often make people numb and unresponsive," said Magnus Ranstorp, deputy director of the Center for the Study of Terrorism and Political Violence at St. Andrews University in Scotland. "You have to engage people to get into their minds and learn what is there."

...

Omar al-Faruq, a confidant of Mr. bin Laden and one of Al Qaeda's senior operatives in Southeast Asia, was captured last June by Indonesian agents acting on a tip from the C.I.A. Agents familiar with the case said a black hood was dropped over his head and he was loaded onto a C.I.A. aircraft. When he arrived at his destination several hours later, the hood was removed. On the wall in front of him were the seals of the New York City Police and Fire Departments, a Western official said.

...

The details of the interrogation are unknown, though one intelligence official briefed on the sessions said Mr. Faruq initially provided useless scraps of information.

What is known is that the questioning was prolonged, extending day and night for weeks. It is likely, experts say, that the proceedings followed a pattern, with Mr. Faruq left naked most of the time, his hands and feet bound. While international law requires prisoners to be allowed eight hours' sleep a day, interrogators do not necessarily let them sleep for eight consecutive hours.

...

The Western intelligence official described Mr. Faruq's interrogation as "not quite torture, but about as close as you can get." The official said that over a three-month period, the suspect was fed very little, while being subjected to sleep and light deprivation, prolonged isolation and room temperatures that varied from 100 degrees to 10 degrees. In the end he began to cooperate.

Mr. Faruq began to tell of plans to drive explosives-laden trucks into American diplomatic centers. A day later, embassies in Indonesia and more than a dozen other countries in Southeast Asia were closed, officials said. He also provided detailed information about people involved in those operations and other plots, writing out lengthy descriptions. He held out longer than Mr. Zubaydah, who American officials said began to cooperate after two months of interrogation.
Nosartur
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Reply #12 on: March 25, 2004, 06:14:39 AM

I have watched good interrogators turn US Marines into whimpering, cooperating puppy dogs.  This was even in a training environment where they really couldn't even hurt you or believably even insinuate that they were going to hurt you.   Physical torture is really only useful when you need an answer immediately and are aware that the answer is more than likely going to be wrong or partially wrong.  There are often small parts of the truth in those answers to make them sound more authentic.  So even a wrong answer may help you.
Paelos
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Error 404: Title not found.


Reply #13 on: March 25, 2004, 10:09:36 AM

Torture is good when its behind closed doors, done because you have a short time, and its not on your own citizenry (barring that they are involved in international terrorism). That being said, its done now, and if you think its not, you are pretty naive. Sure its nowhere near the stuff that goes on in a Turkish prison, but it still exists, and we don't know about it because its not sanctioned and not public.

And that's the way it should stay.

CPA, CFO, Sports Fan, Game when I have the time
WayAbvPar
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Reply #14 on: March 25, 2004, 10:26:32 AM

Quote
Sum of all fears. Superbowl.



Ahh, that's right. The Olympics was supposed to get the superbug in Rainbow Six. I told you they were all running together! =)

When speaking of the MMOG industry, the glass may be half full, but it's full of urine. HaemishM

Always wear clean underwear because you never know when a Tory Government is going to fuck you.- Ironwood

Libertarians make fun of everyone because they can't see beyond the event horizons of their own assholes Surlyboi
Mesozoic
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Reply #15 on: March 25, 2004, 10:35:58 AM

I read a piece in the Wash Post some time ago on the subject.  The gist of that article was that torture doesn't work because it only motivates the tortured to tell the torturers whatever they want to hear, as opposed to the truth.  They based this on the effects of Israeli torture (read: violent shaking) on captured Palistinian terrorists.

...any religion that rejects coffee worships a false god.
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WayAbvPar
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Reply #16 on: March 25, 2004, 10:38:35 AM

Quote
They based this on the effects of Israeli torture (read: violent shaking) on captured Palistinian terrorists.


Now I have a picture in my head of a baby with Yasser Arafat's face being violently shaken by an enraged Israeli.

When speaking of the MMOG industry, the glass may be half full, but it's full of urine. HaemishM

Always wear clean underwear because you never know when a Tory Government is going to fuck you.- Ironwood

Libertarians make fun of everyone because they can't see beyond the event horizons of their own assholes Surlyboi
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