An argument can be made for the use of torture. That argument, however, will rarely consider the myriad of extraneous issues that are certain to surround the use of torture. The argument for torture will also always be made using well-tailored, extreme situations, both real and hypothetical, that will point to torture as the inevitable method needed for foiling criminal plots. Unfortunately, many of these arguments actually succeed in swaying people’s attitudes toward accepting the practice of torture. At the very least they create a gray issue out of one that should be black and white. Alan Dershowitz does an almost extraordinary job of adding more shades of gray to the issue in his essay, “Make Torture an Option.” In citing the “ticking bomb” scenario, kidnapped children, and faulty “truth serum” Dershowitz manages to pull all the right strings to make torture seem permissible. He then claims that torture could be contained by the State and should be authorized by the law. Dershowitz’s proposal is to allow for “torture warrants” to be issued by judges on a special case-by-case basis. Such warrants, he argues, would allow the
Dershowitz’s proposal seems like a panacea to all the moral hesitations of those people who, as a general rule, dislike the idea of torture, but view it as a necessary evil under some circumstances. The idea being that while torture is bad it will be controlled under this proposal and only used in extreme cases as to be determined by a judge. It is, however, the process of getting a warrant and concern for the judges who will be given this responsibility that Dershowitz fails to even consider in his argument. If, as the “ticking bomb” and kidnapped children scenarios point out, time really was of the essence in these investigations the necessity to get a torture warrant is unpractical and self-defeating. For the warrant to even be valid law enforcement would be forced to go through the needed paper work and then actually track down a judge to sign off on the torture warrant before they could legally begin any information extraction. Not following this protocol would leave law enforcement in the same position as it is in now. The difference being that we would have two classes of torture going on: the legally sanctioned tortures that took the time to get a torture warrant and those performed outside the law and from which any information would be deemed unusable.
In the time it actually takes to get all this filing done the plot that authorities were trying to prevent has probably already been executed or sufficiently changed so any information extracted from the suspects would be effectively worthless. Hopefully during this time other, more reliable routes of information gathering would have been used concurrently, but even if they were it would not justify the wasting of resources on what would most likely be a wild goose chase. Even the thwarted plot to bomb
Dershowitz also fails to make any mention of what issuing torture warrants would actually mean for the judges themselves. They are essentially being used as scapegoats under this proposal. The torturers could conceivably wash their hands of any moral misgivings by saying that they were only following orders. The judges would then bear the responsibility of doling out treatment that has often been documented as resulting in a fate worse than death. The judges are now the ones who will have to live with these types of decisions for the rest of their lives even though they have not done the actual torturing. There is no feasible way in which we can assume that a judge will be capable of completely detaching themselves from a decision to authorize a warrant stating that a suspect be tortured. A similar point was actually brought up by
“melancholy and lamentable judgments they are, since the judges are men who cannot discern the consciences of those at their bar, and are therefore frequently compelled to put innocent witnesses to the torture to ascertain the truth regarding the crimes of other men[1].”
Even if the suspect did turn out to be guilty the judge would have to shoulder the burden of knowing that a person was tortured, and probably irreversibly changed, through their decision making. It is unfathomable to claim that we can comprehend what the burden of such decisions would be like if the suspect actually turned out to be innocent.
As flippantly as he dismisses the effect of his proposal on judges so too does Dershowitz dismiss the possibility of the innocent being caught up in a torture scenario. On several occasions Dershowitz makes reference to “guilty terrorists,” and seems to believe that these are the only people who would ever be affected by torture. This idea is blatantly untrue. Some of the situations of the people being held in
By stepping back to take in an even wider array of issues besides those pertaining to the judges or the chance of torturing innocents it is easy to see that Dershowitz’s proposal would have other serious ramifications. How the country is seen both at home and abroad would be brought into question. Through legalizing torture the government would presumably take away some of the stigma surrounding it. As the connotations around torture soften or more special scenarios are devised to justify it the use of torture would be more readily accepted by the public. In turn, more judges might begin backing the idea because, as David Luban noted in his essay “Torture and the Ticking Bomb,” “judges do not fight their culture. They reflect it.” (353) It is unlikely that this would develop into a full-blown culture of torture, but Dershowitz is correct in noting that “law enforcement personnel who are given limited authority to torture will expand its use.” (350) In a worst case scenario is it possible to see torture edging out more conventional methods of investigation.
The international stage is a difficult one to play and the actions of the
[1] Augustine, Saint, Bishop of Hippo. The City of
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