Alan Dershowitz's Tortuous Torturous Argument

by Seth Finkelstein

It's torture. Literally. That is, whether or not the United States government should use torture as a method of interrogation for suspected terrorists is now a subject of debate.

Surprisingly, long-time civil-libertarian Alan Dershowitz has been writing unexpectedly in favor of the legal basis for torture. On November 8 2001, in a commentary for Los Angeles Times "Is There a Torturous Road to Justice?" he discusses a proposal for a "torture warrant".

Much of the reaction to Alan Dershowitz's advocacy has blurred over a subtle point. Given that torture is such an incendiary subject, he's been accused of advocating torture itself ( "Dershowitz: Make Torture An Option" reads a headline on However, a careful reading of his commentary makes it clear that he isn't putting forth an argument in favor of torture per se. Rather, he postulates it will occur ("I have no doubt that if an actual ticking bomb situation were to arise, our law enforcement authorities would torture"). His point is then almost tangential from that perspective, a professorial concern with the due process of torture! To wit:

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.
In this piece, I will not take up the arguments against torture. That's been done far better elsewhere, by other civil-libertarians such as Harvey Silverglate, or Amnesty International. Rather, I stand in awe of Dershowitz's focus on legal authorization of torture as the "real debate". All the moral and practical questions are swept away by his assumption of inevitability. We are left only to consider how to deal with what, if any, judicial procedures should surround torture.

He goes on to assert:

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.
While this sounds stirring, on reflection, the meaning of the call for "accountability and transparency" is not at all clear to me. If torture is illegal, then by definition it's operating outside the law. So if a torture warrant is created, obviously torture with warrant would be within the law. But there seems to be a tail-wagging-the-dog situation here. Torture doesn't comply with the rule of law because it's against the law. If the law is changed so that torture is permitted (with warrant), then it's only become complaint with the rule of law because that rule has been changed to accept it.

What is the purpose of the torture warrant? Is it an anti-hypocrisy measure, to force us, as a society, to confront what we are doing? To have a public record of the event, that the defense attorney can use in a trial? To allow the torture to be supervised, with proper medical monitoring, to guard against it becoming life-threatening? To officially provide for doctors to treat the torturee during and after the ordeal?

Perhaps the idea is the simple belief that we can have legal torture, which is bad, but illegal torture would be worse. However, the obvious rebuttal is that we would end up having both legal and illegal torture, feeding off each other. Dershowitz even explicitly takes this into account ("We know from experience that law enforcement personnel who are given limited authority to torture will expand its use.")

So, in the face this expansion of authority to torture, what is gained by making it "accountable"? The anti-hypocrisy basis seems to be Dershowitz's rationale, as he justified the above by saying:

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.
Overall, Dershowitz's reasoning seems shockingly convoluted. We end up resolving the conflict between torture and the rule of law by changing the rule of law to accommodate torture. Then an admitted following expansion in torture (both from legal and illegal sources) is brushed aside with the argument that the legal torture would somehow possess accountability and transparency (accountable for what? transparent how?). Suppose Dershowitz is correct that there will be illegal torture under desperate circumstances, and without issuing a torture warrant, as a society we will be "winking an eye" to it. Is he really arguing that it's better to have more torture (due to the admitted effects of the tendency "expand its use"), but at least some of the torture will then be authorized torture? That is, judicial process is regarded as so sacred that it's worth torturing more people in order to preserve it in the merest formal sense?

That's both tortuous and torturous.