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Dershowitz: Torture could be justified

Ken Roth and Alan Dershowitz
Ken Roth and Alan Dershowitz

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WASHINGTON (CNN) -- Following the capture of Khalid Shaikh Mohammed, the question has become whether the senior al Qaeda leader will reveal key information about the terrorist network. If he doesn't, should he be tortured to make him tell what he knows?

CNN anchor Wolf Blitzer posed this question to noted author and Harvard University law professor Alan Dershowitz and Ken Roth, the executive director of Human Rights Watch.

BLITZER: Alan Dershowitz, a lot of our viewers will be surprised to hear that you think there are right times for torture. Is this one of those moments?

DERSHOWITZ: I don't think so. This is not the ticking-bomb terrorist case, at least so far as we know. Of course, the difficult question is the chicken-egg question: We won't know if he is a ticking-bomb terrorist unless he provides us information, and he's not likely to provide information unless we use certain extreme measures.

My basic point, though, is we should never under any circumstances allow low-level people to administer torture. If torture is going to be administered as a last resort in the ticking-bomb case, to save enormous numbers of lives, it ought to be done openly, with accountability, with approval by the president of the United States or by a Supreme Court justice. I don't think we're in that situation in this case.

BLITZER: Well, how do you know ...

DERSHOWITZ: So we might be close.

BLITZER: Alan, how do you know he doesn't have that kind of ticking-bomb information right now, that there's some plot against New York or Washington that he was involved in and there's a time sensitivity? If you knew that, if you suspected that, you would say [to] get the president to authorize torture.

DERSHOWITZ: Well, we don't know, and that's why [we could use] a torture warrant, which puts a heavy burden on the government to demonstrate by factual evidence the necessity to administer this horrible, horrible technique of torture. I would talk about nonlethal torture, say, a sterilized needle underneath the nail, which would violate the Geneva Accords, but you know, countries all over the world violate the Geneva Accords. They do it secretly and hypothetically, the way the French did it in Algeria. If we ever came close to doing it, and we don't know whether this is such a case, I think we would want to do it with accountability and openly and not adopt the way of the hypocrite.

BLITZER: All right. Ken, under those kinds of rare, extreme circumstances, does Professor Dershowitz make a good point?

ROTH: He doesn't. The prohibition on torture is one of the basic, absolute prohibitions that exists in international law. It exists in time of peace as well as in time of war. It exists regardless of the severity of a security threat. And the only other comparable prohibition that I can think of is the prohibition on attacking innocent civilians in time of war or through terrorism. If you're going to have a torture warrant, why not create a terrorism warrant? Why not go in and allow terrorists to come forward and make their case for why terrorism should be allowed?

DERSHOWITZ: Well, in fact, we've done that. Of course, we've done that. We have bombed civilian targets during every single one of our wars. We did it in Dresden. We did it in Vietnam notwithstanding these rules. So you know, having laws on the books and breaking them systemically just creates disdain ... It's much better to have rules that we can actually live within. And absolute prohibitions, generally, are not the kind of rules that countries would live within.

I want to ask you a question. Don't you think if we ever had a ticking-bomb case, regardless of your views or mine, that the CIA would actually either torture themselves or subcontract the job to Jordan, the Philippines or Egypt, who are our favorite countries, to do the torturing for us?

ROTH: OK, there is no moral or legal difference between torturing yourself and subcontracting torture to somebody else. They're equally absolutely prohibited.

DERSHOWITZ: But we do it.

ROTH: In the case -- the fact that sometimes laws are violated does not mean you want to start legitimizing the violation by getting some judge to authorize it. Imagine, you're always thinking about the U.S. Supreme Court, but any rule you apply to the United States has to be applied around the world. Do you want Chinese judges authorizing torture of say, Muslim dissidents?

DERSHOWITZ: It wouldn't make any difference. They just torture anyway. It wouldn't make any difference. They torture now.

ROTH: Once you open the door to torture, once you start legitimizing it in any way, you have broken the absolute taboo. President Bush had it right in his State of the Union address when he was describing various forms of torture by Saddam Hussein and he said, "If this isn't evil, then evil has no meaning."

BLITZER: Well, let me interrupt, Ken. Let me ask you about a hypothetical case. Professor Dershowitz talks about it in one of his articles and one of his books. There's a terrorist attack. A lot of people have just been killed in New York. They capture one of the terrorists, who says, "Guess what, there's another bomb out there, it is going to kill a lot more, but I'm not telling you where it is."

ROTH: Yes, that's the ticking-bomb scenario, which everybody loves to put forward as an excuse for torture. Israel tried that. Under the guise of just looking at the narrow exception of where the ticking-bomb is there and you could save the poor schoolchildren whose bus was about to be exploded some place. They ended up torturing on the theory that -- well, it may not be the terrorist, but it's somebody who knows the terrorist or it's somebody who might have information leading to the terrorist.

They ended up torturing say 90 percent of the Palestinian security detainees they had until finally the Israeli supreme court had to say this kind of rare exception isn't working. It's an exception that's destroying the rule. We have to understand the United States sets a model for the rest of the world. And if the United States is going to authorize torture in any sense, you can imagine that there are many more unsavory regimes out there that are just dying for the chance to say, "Well, the U.S. is doing it, we're going to start doing it as well."

DERSHOWITZ: And I think that we're much, much better off admitting what we're doing or not doing it at all. I agree with you, it will much better if we never did it. But if we're going to do it and subcontract and find ways of circumventing, it's much better to do what Israel did. They were the only country in the world ever directly to confront the issue, and it led to a supreme court decision, as you say, outlawing torture, and yet Israel has been criticized all over the world for confronting the issue directly. Candor and accountability in a democracy is very important. Hypocrisy has no place.

ROTH: So let's learn the lesson from the Israelis, which is you can't open the door a little bit. If you try, you end up having torture left and right. The other alternative, rather than legitimizing with torture warrants, is to prohibit it and prosecute the offenders. And we have murder on the street every day. We don't ask for murder warrants.

BLITZER: Ken, let me just get back to that ticking time bomb scenario. You would -- you could morally justify letting this terrorist that you've captured remain silent and allow hundreds of people to die?

ROTH: Look, we just heard from the chairman of the Senate Intelligence Committee. You just had him on your show, Wolf, who said the interrogators at Bagram Air Base or wherever Mohammed is, they don't need torture. They have other, legitimate ways of getting at the truth. They're listening in through various wiretaps and the like.

Torture is not needed. If you start opening the door, making a little exception here, a little exception there, you've basically sent the signal that the ends justify the means, and that's exactly what Osama bin Laden thinks. He has some vision of a just society. His ends justify the means of attacking the World Trade Center. If we're going to violate an equally basic prohibition on torture, we are reaffirming that false logic of terrorism. We are going to end up losing the war ...


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