Torture, Ticking Time-Bombs, and Dershowitz's Judicial Warrant Proposal

Introduction: Defining Torture Under International Law

In 1984, the United Nations General Assembly produced an advisory measure known as the United Nations Convention Against Torture. This document specifically addressed torture from the perspective of governments and states, while also focusing on the use of torture by any individual acting in an official capacity for said state or government. The document additionally addressed other forms of "cruel and inhumane treatment." Two other aspects of this convention are important: any government or state is forbidden to extradite individuals to a nation where it is reasonably possible that they might be tortured, and governments or states are required to act effectively to halt and/or block the use of torture within their borders. Evidence obtained through torture is likewise forbidden from use in any legal proceedings or courts.

The definition of torture specifically excludes actions involved in lawful sanctions — presumably such as the death penalty, but also perhaps the "accidental injury" of a suspect during the events leading up to his arrest. With this sole exclusion, torture was defined as those acts by which physical and/or mental suffering and/or pain are intentionally imposed upon an individual as part of an effort to obtain information (Ticking Time Bomb and Torture, n.d.). Factors involved in this definition include prohibition of any such acts by any public official, the deliberate intentionality of the act regardless of the reasons and/or justifications put forth for its necessity, and the use of the word "severe" in terms of mental and/or physical pain being inflicted. Both subjective and objective elements are thus included, as well as factors such as coercion and punishment (Wattad, 2008–2009). While there are those who suggest that the United Nations' definition of torture may be limited in scope and insufficiently precise, it can serve adequately for the purposes of the discussion herein.

Dershowitz on Torture and Judicial Accountability

Alan Dershowitz eloquently presents his views on torture in an essay entitled "Should the Ticking Bomb Terrorist Be Tortured?" He begins by describing how his teaching method at Harvard involves presenting students with a choice between evils — illustrated by a story about a railroad engineer — and from there takes the reader through his personal, step-by-step process of thinking about torture. Dershowitz states that his teaching experience in Israel had a significant impact upon his views on the subject, as this topic was of considerable importance at the time and remains so today.

Dershowitz observes that, even in the United States, the use of non-lethal torture is presently employed in order to obtain critical information needed to prevent terrorism. While torture is ongoing, it is clandestine — neither commonly known nor politically accepted. Such acts are performed in a manner that provides deniability and avoids political accountability. Dershowitz himself deplores torture and speaks of the ideal alternative in which torture would not be used. He repeatedly frames alternatives to torture, even going so far as to suggest that when faced with the "ticking time-bomb" dilemma, one might simply choose to turn away rather than breach a moral imperative. In his essay, Dershowitz presents the perspectives of contemporary as well as earlier philosophers, including both Jeremy Bentham and Voltaire. He also offers what he calls a "fifth road" approach to the topic of torture — simply not addressing the matter at all, turning away from a controversial and confusing ideation. However, he immediately counters this suggestion, arguing that it is far better to discuss torture openly, and to confront the full gamut of its moral complexity, than to become the proverbial ostrich hiding its head in the sand and pretending that danger does not actually exist.

Torture without accountability is unacceptable according to Dershowitz, who holds that it also encourages moral hypocrisy and dishonest posturing. He proposes that the best alternative — one enabling the United States to protect the populace and act decisively while retaining at least the crumbs of moral superiority — would be to move toward judicial authorization of torture. With this controversial proposal, he argues that making torture judicially sponsored would produce, at minimum, genuine moral honesty rather than hypocritical pretense.

Dershowitz states that he is fully convinced that, were there a serious and imminent threat of mass-casualty terrorism, whether by nuclear, chemical, and/or biological means, torture would unequivocally be employed in an attempt to gain information or to halt such an event (Dershowitz, 2002). Given the present state of global affairs and the continued presence of terrorism, Dershowitz's thoughts on the topic remain highly relevant. Implicit in his work are questions of individual and collective societal stance on the moral grounds of torture, and a direct impetus to explore available alternatives when faced with such a quandary: a choice between harming one person and potentially preventing a greater harm from befalling many. Indeed, this precise question is posed by Dershowitz in his classes as the classic railroad conundrum. With respect to torture, Dershowitz states that he has deliberately tried to begin a debate on torture as a policy question for a democracy to address — specifically, that debate is an important component of situations that lack a simple "good" resolution but instead require the far more difficult "choice of evil" (Dershowitz, n.d.).

As described by Dershowitz, many authors and philosophers have discussed the "choice of evil" scenario, of which the "ticking bomb" is only the latest and most relevant example. Assume a terrorist who has been captured and is known to possess information about an imminent attack with a weapon of mass destruction that could hypothetically maim and/or kill thousands. The moral dilemma concerns whether torture — to gain potentially life-saving information from that terrorist — is justifiable.

Dershowitz also describes his visit to Israel, where he learned that torture as an active method to halt terrorism or uncover impending terrorist activities had moved beyond the hypothetical into actuality. While Dershowitz himself advocated a "purist" position — letting the bomb go off — he found that Israelis were not willing to accept that stance even in conversation. Again, he discusses his proposed alternative: if torture is going to be used, make it "legal" by requiring a warrant and advance judicial approval. This idea apparently generated considerable attention and criticism from the media, among others. In his view, the essence of the judicially approved torture concept was to arrange for public, rather than clandestine, accountability. For Dershowitz, legally sanctioned torture was at least a step toward honoring and maximizing civil liberties (Dershowitz, 2002).

Following the September 11, 2001 terrorist attacks, the emotional mood as well as the intellectual perspective of the American populace toward issues such as torture were radically altered. Agents representing the Federal Bureau of Investigation reportedly stated that torture might be deemed necessary to prevent further terrorism (Pincus, 2001). Following the horrors of Nazi Germany, many Americans — even those too young to have lived during that period — had viewed torture as an inhumane act committed by others, never by Americans. Thus, the actuality of torture occurring on American soil was shocking to say the least, yet simultaneously, the mixed emotions arising from the 9-11 event had seriously altered many opinions as to what was "right" when it came to terrorists and the obtaining of potentially life-saving information.

Dershowitz addressed these themes in his book Why Terrorism Works: Understanding the Threat, Responding to the Challenge (Dershowitz, 2002). In part, the book focused on striking a balance between the highest possible retention of civil liberties and working proactively to ensure national security. As discussed by Sung (2003), Dershowitz seeks to open a dialogue concerning the diverse legal and moral challenges facing a democratic society that must simultaneously uphold values of personal privacy and liberty while acting in a manner that effectively deters terrorism. Dershowitz considers means to prevent, or at least slow, terrorism at both macro- and micro-scales. The macro-scale involves understanding and analyzing the various types of terrorism; the micro-scale involves more specific and situational actions. For example, Dershowitz considers the possibility that a particular subset of terrorists may be relatively rational, acting in a terrorist manner simply as a means to garner attention for their political cause. In such a micro case, attention is precisely what should not be provided to the terrorist. Dershowitz viewed his own work as opening an essential collective dialogue about torture, about the moral repugnancy we feel and should feel toward torturing a fellow human being, and about the recognition that there might indeed be a time and place in which torture was nonetheless requisite "for the greater good." Furthermore, he argued that in acting to punish terrorists and prioritize national security, society acts collectively — but this act should not be hidden behind closed doors; rather, it should be openly debated and discussed, as the example of judicially sanctioned torture implies. Finally, the price of protecting lives must never be as high as the loss of liberty, given that personal liberties are an essential part of our society (Sung, 2003).

Dershowitz's answer to the moral quandary presented by torture was to permit non-lethal torture if it were judicially sanctioned and if it were shown to be necessary to gain specific information that would result in saving lives. Obviously such a proposal was, and likely remains, highly controversial. Again, Dershowitz resorts to the "ticking bomb" scenario, where thousands of lives are in imminent danger and the only source of information is a terrorist who refuses to speak. The question becomes: should torture be employed in order to save lives, or is torture so morally repugnant that it is unwarranted regardless of the circumstances? Under such a scenario, Dershowitz proposes that a warrant permitting torture should be issued by a judge, thus rendering the torture "legally sanctioned." He repeatedly makes clear that he is personally opposed to torture "in general," but that there may be circumstances in which torture could be reasonably excused or permissible given the potential lives that would be saved. The use of a judicially sanctioned mandate for torture is therefore Dershowitz's solution in a "worst-case" scenario.

However, despite Dershowitz's eloquence, it is not necessarily the case that judicial sanctioning of torture would effectively decrease its use. And if his proposal is not accepted, it is equally unclear whether torture will stop, given the global crisis of terrorism and the preeminent drive to protect the innocent. It appears more likely that torture will continue regardless (Sung, 2003). As Dershowitz frames it, torture is going to occur regardless of legal status, and may even be necessary for national security. Under those conditions, it becomes imperative to choose between judicially sanctioned torture and secret torture. For Dershowitz, judicially sanctioned torture is the lesser evil. However, there may yet be alternatives to sanctioning torture — means by which national security can be protected without requiring society to sacrifice human dignity.

As Dershowitz points out, there are a variety of means by which national security can be enhanced: improvement of intelligence, restricting immigration, issuance of national identification, increased surveillance, and more security checkpoints. Many of these suggestions have been implemented in the United States as part of the Patriot Act, which was initiated under President George W. Bush and subsequently signed and continued by President Barack Obama. The intent of such measures is to provide early evidence of terrorist plots in advance, before the "last chance" scenario of the ticking time bomb (Sung, 2003). If a variety of such methods are employed to enhance national security, the perceived necessity of obtaining information through coercion of terrorism suspects may decrease. More information may lead to alternatives that do not carry the potential requirement of torture.

Furthermore, it is unclear whether the truth would actually be told if torture were used, as one can observe from reading histories of torture employed during "witch trials" in the United States or Great Britain. Individuals being tortured might provide false information simply to make the torture cease. Some have suggested that the ability to use torture might reduce law-enforcement investigative effort, since the presence of a captured "source" might actually deter further investigation. If this were the case, it might actually become more difficult to obtain accurate information about other potential threats beyond those known to the individual or individuals being tortured. Spreading the search across a wider variety of information sources could increase leads to preventable terrorist activity and eliminate the possibility of a "ticking time bomb" situation from arising altogether. Were more information available through these other channels, the perceived need to torture might be eliminated (Sung, 2003).

An important consideration for each of us is whether such alternative security measures are themselves likely to result in a loss of personal and individual rights, ranging from privacy to liberty to our very dignity as human beings. Essentially, the requisite action is for each of us individually, and for society as a whole, to determine what price — in terms of civil liberties — we are willing to pay for national security. The price for national security should not be so high as to require the loss of civil liberty. Given the likelihood that some action is required, perhaps that action should focus on finding means to gain information that are less likely to infringe upon civil liberties, rather than on pursuing a process of judicial sanctioning of torture. The sanctioning of torture must be recognized as a loss of human dignity. According to Sung (2003), were society seriously called upon to choose between the loss of personal liberties and the loss of human dignity, the latter must be preserved at all costs, including at the cost of a sacrifice of liberty.

Conclusion: Torture, Liberty, and Democratic Values

Remembering that the ticking-bomb argument is widely used — the same scenario approached from many different perspectives — it appears that the argument often results in a choice for torture given a hypothetical likelihood of saving many lives. In contrast, Dershowitz appears to defend torture, yet the crux of his argument is that only in honest recognition of this act in all its horrors can we potentially decrease the actual use of torture. Dershowitz is unequivocal in stating that he finds torture morally repugnant. Yet despite this repugnance, he claims that given the potential political justification of torture in some cases, it is imperative for the United States — as individuals and as a citizenry — to take a stand on the issue, to discuss it openly, and ultimately to provide judicial oversight of torture as the only reasonable alternative. Dershowitz is of the opinion that judicial oversight of torture will limit the extent to which it is practiced.

If torture were to be allowed on condition of judicial review, this would essentially legalize torture in specific cases. However, making some cases of torture legal may not be the "real" issue — which is the likelihood that torture is ongoing, whether legal or not. There are those who say that torture will occur regardless of what stance society takes, and that the act of discussion, like the act of judicially sanctioning torture in some cases, will have no effect on this illegality. Simply requiring judicial review prior to torture may not mean that those who feel torture is justified will suddenly stop and wait for a judge's permission (Wisnewski, 2008).

Today's political realities, in terms of terrorists operating within our borders, make for some unpleasant politics. The government of the United Kingdom acted in 2005 to remove restraints on suspected terrorists within the UK and instead released these suspects for deportation. The countries to which the suspected terrorists were being deported, however, were those in which the reality of torture was quite probable. Article 3 of the European Convention on Human Rights is unambiguous, stating: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." Furthermore, the European Court of Human Rights has stated that this Article also prohibits a government from knowingly using extradition to send an individual to a location that does permit torture. Thus, it can be argued that the UK government knowingly sentenced the suspected terrorists to torture, if indeed torture was the result of their deportation.

It would seem obvious that the procedure of extraditing suspected terrorists is a practice that only shifts the act of torture from the conscience of one country, while potentially strengthening torture in another. As well, extraditing suspected terrorists to a locale where they are likely to be tortured is directly contrary to the accepted human rights standards presented by international bodies such as the United Nations. For all of us, the threat of unexpected and massive loss of life as a consequence of terrorist activity has become a reality. Regardless, however, legalizing torture is unlikely to offer any benefits, and may carry greater costs in terms of moral equivalency. Terrorism is not deterred by the use of torture, as has become evident from the words and actions of many in Al Qaeda and ISIS today; terrorism may instead be only strengthened, fueling an attitude of implacable hatred and providing justification for terrorist acts from within these and other organizations. Perhaps it is only fair to state that if we choose to completely oppose torture, we must be aware that such a stance may not be without negative consequences. In the words of American Founding Father Benjamin Franklin, "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."

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