According to the ticking bomb scenario, torture can
be justified in order to force a political criminal to reveal the location of an
explosive device before it can go off and kill many people. While a number of
legal and social scholars have debated whether torture can ever be justified in
a moral society no matter what the intent, famed social commentator and legal
scholar Alan Dershowitz disagrees. He argues that torture can be justified
under some circumstances, especially to prevent damaging terror attacks. Moreover,
he believes that the “vast majority” of Americans would expect law enforcement
agents to engage in time-honored methods of “loosening tongues” if the circumstances
demanded it, even though international bodies such as the United Nations forbid
its use no matter how exigent the circumstances. To ensure that torture is not
used capriciously, Dershowitz proposes the creation of a “torture warrant” that
can only be issued by a judge in cases where (a) there is an absolute need to
obtain immediate information in order to save lives and (b) there is probable
cause that the suspect has such information and is unwilling to reveal it to
law enforcement agents. The suspect would be given immunity from prosecution
based on information elicited by the torture; it would only be to save lives. The
warrant would limit the torture to nonlethal means, such as sterile needles
being inserted beneath the nails to cause excruciating pain without endangering
life.
While Dershowitz recognizes that it may sound both
awful and absurd for a judge to be issuing a warrant to torture a suspect, in truth
every democracy, including our own, has
employed torture outside of the law. It is routine for police officers to put
tremendous pressure on suspects in order to get them to talk. The “third
degree” is all too common, not only on TV shows, but in the back rooms of real
police station houses. If it is already used, would it not be better to have it
regulated and controlled by the rule of law? If it isn’t, law enforcement
agents would continue to use torture anyway, only it would fall “below the
radar screen of accountability.” Which would be more consistent with democratic
values?
Dershowitz recognizes that those opposed to the idea
of a torture warrant argue that establishing such a precedent would legitimize
torture and make it easier to use under any circumstances. But he believes that
the opposite would be true: by expressly limiting the use of torture only to
the ticking bomb case and by requiring an objective and reasoned judge to
approve, limit, and monitor the torture, it will be far more difficult to
justify its extension to other institutions. The goal of the warrant would be
to reduce and limit the amount of torture that would, in fact, be used in an
emergency.
Not everyone agrees that in some extreme cases the
“ends justify the means.” Human Rights Watch, an international group dedicated
to protecting the human rights of people around the world, counters Dershowitz
by pointing out that while the ticking bomb scenario makes for great philosophical
discussion, it rarely arises in real life. Except in movies and TV,
interrogators rarely learn that a suspect in custody knows of a particular,
imminent terrorist bombing and that they have the knowledge to prevent a catastrophe. Intelligence is rarely,
if ever, good enough to provide such specific advance warning. If terrorists
knew their plan could be foiled by information provided by a prisoner, why
would they not change the plan? While not practical, the ticking bomb scenario
can be dangerous because it expands the use of torture to anyone who might have
knowledge of unspecified future terrorist attacks: Why are only the victims of
an imminent terrorist attack deserving of protection by torture? Why not also
use torture to prevent a terrorist attack tomorrow or next week or next year?
And why stop with the alleged terrorists themselves? Why not also torture their
families or associates—anyone who might provide life-saving information? The
slope is very slippery, Human Rights Watch claims.
CRITICAL THINKING
You are a government agent holding a prisoner who has
been arrested on suspicion of being a terrorist. You get a call stating that there
is a credible threat that a bomb will go off in two hours unless it can be
found and defused. The prisoner has knowledge of the bomb’s location. How would
you get him to reveal the location? Would you consider using torture? Is there
a better method?
SOURCES
1.
Alan M. Dershowitz,
Shouting Fire: Civil Liberties in a Turbulent Age (New York: Little, Brown,
2002)
2.
Dershowitz, “Want to Torture? Get a Warrant,” San Francisco
Chronicle, January 22, 2002
3.
Human Rights Watch, “The Twisted Logic of
Torture,” January 2005, http://hrw.org/wr2k5/darfurandabughraib/6.htm
(accessed November 2, 2010).
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