2016-07-27
"The United States does not torture," President Bush said when he announced the transfer of 14 top terror suspects to the military prison at Guantanamo Bay on Sept. 6. Yes it does, says author and legal scholar Alan Dershowitz, who calls for a public debate on the moral and pragmatic dimensions of this "reality."


You’ve said that although torture is never acceptable, it’s nevertheless a reality of post-9/11 American policy.

Yes. I am categorically opposed to the use of torture. That’s my moral position. My empirical observation as an expert in these matters is that torture is going on, that every democracy has used and will use torture.

The analogy is to an airplane flying toward the Empire State Building with 300 innocent people in it, because it’s been hijacked by terrorists. What a terrible decision somebody might have to make, to shoot down that airplane over the Atlantic Ocean and kill 300 innocent people.

Would we ever want to justify killing 300 people on an airplane? Of course not. But if the choice is between killing 300 and killing 3,000, the decision is going to be made to kill the 300. That’s the reality of life in the post-9/11 world.

If we ever capture a ticking-bomb terrorist who could prevent the blowing up of an atomic bomb in New York City,  every democratic leader will use torture. That’s my empirical observation, as distinguished from my moral observation.

And so, if torture is a reality--as it is today--there must be accountability. We must know who authorized it. We must know the circumstances under which it was authorized.

How would we do that?

The President must in each instance sign an authorization to use torture, explain why, and explain what torture is going to be allowed and what torture is not. The warrant would require the President to say, “We have Khalid Shaikh Mohammed in our possession. He can tell us about the next 9/11, which is being planned immediately and, therefore, I’m approving the use of water-boarding." Or, "I’m approving the use of a sterilized needle underneath his nails. This is an extraordinary event requiring that national security override the usual rules of law, and I am taking responsibility for authorizing it. If I’m wrong, vote me out of office, because I’m taking responsibility.”

Just like the President would have to take responsibility for shooting down an airplane. We wouldn’t want some low-level Air Force sergeant to make that decision. And if we had this procedure in place, we could never have an Abu Ghraib, which is the result of having no accountability. 

Your critics, including Dr. Steven Miles, say that on the pragmatic level, you’re wrong: Torture does not work.

That is a stupid argument. Ask the people who submitted to torture during many instances of horrible attacks by Stalinism or by Nazism. 

The question is, is it worth it? Is it worth the deaths or the injuries? That’s a legitimate moral debate. But I pay no attention to anybody who says that it never works, because that simply blinks at reality.

The reality is, A) it works sometimes and, B) more important, all democracies believe it works and they’re going to continue to use it. So, should we have it done under the radar screen, hidden from view, or should we have it done with accountability?

If it’s done openly, and if it doesn’t work, we’ll be able to abolish it. Right now, we have some really naïve people saying it never works; therefore, why are you even bothering to have this debate? Others are saying it works all the time.

I think that it works infrequently enough, and it hurts frequently enough, so that my personal position would be to vote against its use. But, as long as it’s being used, I want accountability.

You’ve written that our government tortures “promiscuously” and lies about it. Is that deliberate? 

Of course. Hypocrisy is the homage that vice pays to virtue. And we have to lie because, today, nobody is prepared to acknowledge that we’re doing something which is so inexcusable. What I would prefer to do is see public acknowledgement, and then we can have a great debate about whether or not this should lead us in one direction or another.

Secret torture is the worst of all possible worlds, and that’s the world we live in today, because people like Dr. Miles and human-rights extremists believe that by wishing it will go away, it will. That’s not the way you abolish phenomena like the death penalty or torture in a democratic society.

So what kind of a public debate do we need, and who should lead it?

It always has to start in the academy, which is why I tried to start this debate right after 9/11.

I teach my students about the impossible choice of evils. It’s so easy if you can choose between good and evil. And that’s what I learned from my rabbi and so many people learn from their priests and ministers: always choose good. In the real world in which we live, you always have to choose between evils. And in choosing between evils, you have to have moral criteria for how to make those choices.

When you’re being attacked by terrorists and the terrorists hide among civilians, and the only way to stop the attack is by trying to go after them, knowing that you may occasionally kill an innocent person in the process, you have to make that decision. Or take a simpler example. If a robber robs a bank and takes a hostage, and he’s shooting and killing innocent people on the street, the police have to make the decision to try to kill the robber, although they know it will risk the life of the hostage.

Those are the kinds of decisions I try to teach my students to make. And yet, there are always the extremists on both sides who believe that life is simple and that you can always choose good and you can always reject evil. They don’t want to have this kind of a debate.

Did you learn this from your Jewish tradition?


Absolutely. It is clearly a product of my Jewish heritage. And I study Talmud. In the Talmud, in the Torah, the first rule is there are no absolutes. “Choose life” is clearly the postulate. But there’s a wonderful story in the Talmud about a tyrant who surrounds a walled city and says to the people in the walled city, “Unless you produce an individual, who we will kill, we will destroy the whole city.” And that issue is debated in the Talmud at length, and continues to be debated.

During the Holocaust, there were situations where a child was crying in a hideout, and the families had to decide whether to try to silence the child, which risked his life, or allow the child to continue to cry and thereby risk the lives of the 40 or 50 people. My own family had such an experience in Poland. And the child was sent away because he was crying, and he was killed.

These are the kinds of impossible decisions that have to be made in a society. And the Jewish tradition provides for that. Christian theology provides for that, too: a sense of never intending to kill innocent people, but knowing occasionally that innocent people will be killed and that a sense of proportionality must prevail. Every sophisticated religious tradition has a way of resolving a choice of evils.

Has the Bush administration embraced your idea?

Neither side has embraced my idea. The Bush administration doesn’t like torture warrants because it wants to continue to do torture without warrants. The other side doesn’t want torture warrants because it doesn’t want to have anything to do with dirtying their hands with the possibility that they might be legitimating torture in some way.

Has the United States lost that moral high ground, because of the use of torture?

I think we’ve lost it because of the hypocrisy. Let’s remember that torture grows out of religions. That is, the major uses of torture were during the Inquisition and during efforts by religious groups to try to make everybody conform to religious doctrine or religious belief. So, religion is no guarantee against torture. Perhaps contemporary religion is, but religions in the 15h century, 16th century were no guarantee against torture. People were so sure of their views that they would be willing to torture people on earth to prevent them from having damnation throughout eternity.

It would be so much better if the United States were known as the following: “We’re opposed to torture, but we’re also opposed to the killing of civilians. If there is a time in which the future of the nation is at stake and the only way to prevent it would be to break the law, we have a procedure in place to make sure that this only happens in the most extreme of cases.”

I think that would help us restore the moral high ground. Hypocrisy is not a way of getting back to the moral high ground. Pretending you’re moral, saying your moral is not the same as acting morally.

Have we adopted an ends-justify-means mentality, because we want to preempt another terror attack?

Yes. I think the reality of the moment is people feel that way. And I’ve written a book called “Preemption: A Knife That Cuts Both Ways,” in which I argue that we need to have a jurisprudence of preemption, explaining when it can be used and when it can’t be used; balancing the costs of preemption against the benefits of preemption.

New technologies can’t be ignored. We have to not pretend that the national security agencies are intruding into our privacy. We have to begin to regulate how that’s done, if it’s to be done at all--part of the process of recognizing new threats and responding to them with traditional policies and principles.

You’ve said that the Geneva Conventions, formulated after World War II to protect human rights in wartime situations, have become “a sword used by terrorists to kill civilians rather than a shield to protect civilians from terrorists.”

Absolutely. They are now being used as a way of increasing civilian deaths. Look at what terrorists do. They hide among civilians. They fire from behind civilians, they send rockets from where civilians live. And they say, “Ha, ha! You can’t attack us. We’re living among civilians and the Geneva Conventions prevent you from coming after us because we’re among civilians.”

The Geneva Conventions were written at a time when battles were fought with uniformed armies, who were out on battlefields and away from civilian areas. Today, it’s exactly the opposite. We have to amend the Geneva Conventions to introduce a sense of proportionality as to putting the blame for the killing of civilians on the terrorists who hide behind them.

Can we distinguish between torture for the sake of prevention from torture as a visceral act of revenge?

The word “torture” is associated in the minds of many with torturing somebody to death--to simply increase the pain prior to death. That’s done by tyrannies. I mean to suggest something quite different. That is, the infliction of horrendous pain without any danger to the life of the individual as a means of extracting information. You may in the end want to ban that, too. I would myself ban that. But, that’s different from torturing somebody to death.

Don’t the Judeo-Christian and Muslim traditions condemn the use of pain on another human being in that way?

The religious traditions don’t oppose torture. And I think we have to get beyond religious traditions and get to moral traditions. Let’s also remember that it was the liberal philosopher Jeremy Bentham who favored the use of torture. And Immanuel Kant, the more conservative philosopher, who opposed the use of torture under any circumstances. So, it’s not been a liberal/conservative debate. It’s not been a religious/secular debate. It’s been a debate that transcends all of those labels.

In the end maybe, empirically, it will be proved that we can’t make these distinctions. That if you allow any torture, that torture will begin to be used to simply gratuitously inflict pain and that would be a very strong policy argument against ever using it. And so, I think this is the kind of debate that has to happen. I think we have the intelligence to bring the debate back to where it should be.

A debate aimed at a result that conforms to our existing moral standards, or do we need to forge new moral standards for a post-9/11 era?

There are no such things really as new moral standards. With Ecclesiastes, I believe that there is very little new under the sun.

We have to, in a nuanced way, adapt existing morality to new challenges. The struggle for morality never stays won. It’s always in process. And there are no 15th-century answers to 21st-century problems. Though the past doesn’t have a veto, it clearly has a vote. I don’t want to make dramatic changes in our morality. I generally like the morality that applies the Judeo-Christian or Abrahamic principles to Western democracies. But, I want to adapt them to the new reality.

Remember in the first book of the Bible, although there’s a prohibition against incest, Lot’s daughters commit incest with their father in order to perpetuate humankind. And Abraham lies about his wife and calls her his sister to save her life. Jacob steals his birthright from his brother to promote a reasonable end. Jacob’s sons kill those who raped his daughter.

Throughout the book of Genesis, and the New Testament, and the Qur’an you will see instances of morally nuanced approaches and debates. In some respects the debates were more interesting back then and in the Talmud and in the Sharia, than they tend to be today, where we think we know everything about the absolutes of morality.

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