Monday, April 27, 2015

LarryJSiegel. Criminologie.11e. Chapter 11. Political Crime and Terrorisme. Wadsworth, Cengage Learning. 2012.

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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