People packed into the Chilmark Public Library last week — finding spots on the floor, standing in the back, even watching from the windows — to see Alan Dershowitz explain why torture should be allowed through a warrant.
A spoonful of sugar helps the medicine go down, or so the song goes. And Mr. Dershowitz, a longtime Chilmark summer resident famous for his controversial career as a lawyer and a professor at Harvard Law School, knows how to lay on the sugar.
He is a gifted and charismatic orator whose nuanced arguments at last week’s event produced you-have-to-hand-it-to-him nods from the crowd. And in Chilmark, a town that by his estimate leans heavily to the left, Mr. Dershowitz dished the jokes, qualifiers and occasional jabs at the current Bush administration to sweeten and soften his position on the touchy subject of coercive interrogation.
“I myself personally am opposed to torture,” he said. He would repeat it throughout the speech, later stating, “If I could press a button and stop torture, I would do it.”
But no such button exists, he said, and every country that faces an enemy continues to torture, including the United States. Mr. Dershowitz thus proposed in his speech and in his new book, Is there a Right to Remain Silent?, that rather than allowing torture to continue in the dark, the U.S. should recognize that it happens and subject it to the rule of law. It’s a proposal opponents fear would legitimize torture.
“If we’re going to torture, is it worse to do it under the table or do it with the rules?” he asked at the speech. “You can be against something, but be in favor of having a process.”
In a ticking-bomb situation — a favored hypothetical in any post-9/11 torture debate — the president would have to ask the chief justice of the U.S. Supreme Court for a torture warrant. He would have to swear under oath that the information sought is absolutely crucial to preventing an imminent attack on the country and that every other alternative had been exhausted. The president therefore would be held accountable.
Justifying torture through the time limitations of a ticking-bomb situation, and then proposing its regulation through a potentially lengthy warrant process, is a contradiction for which Mr. Dershowitz took heat from his daughter, Ella.
“If you get a warrant, doesn’t that undermine the advantage of torture?” she asked at the speech.
Mr. Dershowitz explained on the telephone the following day that in real-time emergency situations, the president would be able to act and then have to justify it afterward under oath, which is similar to the current wiretapping laws.
These laws should be specific, he told the crowd, and should detail the exact types of torture that would be permissible. When he described one such method, putting a sterilized needle under the fingernail of the subject, the crowd cringed.
“Horrible, horrible,” Mr. Dershowitz said, “but more horrible than executing someone?”
He also is an avid opponent of the death penalty, and used that juxtaposition in his speech to both soften by comparison non-lethal torture as well as demonstrate an element of hypocrisy in the current legal system.
Mr. Dershowitz knew many of the people in the crowd. One of his friends, Mark L. Wolf, the chief judge of the U.S. District Court for the district of Massachusetts, disagreed that the final decision should be that of a judge.
“I think the greatest risk is that no judge would dare not issue the warrant,” Mr. Wolf said, referring to the ticking-bomb situation. “The proper kind of accountability would be to Congress.”
But Mr. Dershowitz disagreed. It should be a legal issue, he said, not a political issue.
While some questioned Mr. Dershowitz’s proposed process, others challenged the very morality of countenancing torture. Mr. Dershowitz, however, said he also opposes torture. His intent is to reduce it — and he said that’s what requiring warrants would do.
Had his plan been in effect, he said, the abuses at Abu Ghraib prison in Iraq never would have occurred. The power of torture would have been taken out of the hands of Abu Ghraib personnel and instead would have had to have been authorized and justified by the highest U.S. government officials.
Mr. Dershowitz debated the evidence supporting counter-arguments — that torture isn’t effective, that it will encourage U.S. enemies to torture captured American soldiers — as they arose.
For a guy who’s taken issue with the media at times, he had an affinity for sound-bites, which included:
“A lot of people are willing to die for a cause, but they are not willing to suffer pain for it.”
“The brilliant people who wrote our Constitution screwed up, quite often.”
“You think our legal system has something to do with truth? Boy, I’m out of work.”
“I would rather live in an imperfect democracy than a perfect tyranny.”
After the speech he stood with his grandchildren and signed books while they collected money. All proceeds would go to the Chilmark Public Library.
When the line died down, he considered the possibility of his plan ever becoming a reality.
“My positions are very hard to implement,” he said. “This idea will catch on, but it will take time.”
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