America's New War?
There are a myriad of reasons why we ought not use torture as a means of "interrogation." Not the least of these: How can you have a fair trial when you are forced to confess to a crime that you may not have committed because your threshold for pain tolerance was crossed? Or if you are given drugs that cause you to say things that you wouldn't ordinarily say in your right mind?
Keep in mind, also, that once a precedent is set for "moderate physical pressure" to be applied, the door swings open widely for harsher tactics in the future. I'll quote James Madison here:
"Temporary deviations from fundamental principles are always more or less dangerous. When the first pretext fails, those who become interested in prolonging the evil will rarely be at a loss for other pretexts."
It is very disturbing to see this trend in the media. Advocating torture of ANY KIND is completely at adds with the Constitutional protection against cruel and unusual punishment. And with good reason!
There are two articles here. The first is Jonathan Alter's piece from Newsweek. The second is reaction from Jim Rutenberg of the New York Times.
By Jonathan Alter
November 5, 2001
In this autumn of anger, even a liberal can find his thoughts turning to ... torture. OK, not cattle prods or rubber hoses, at least not here in the United States, but something to jump-start the stalled investigation of the greatest crime in American history. Right now, four key hijacking suspects arent talking at all.
COULDNT WE AT LEAST subject them to psychological torture, like tapes of dying rabbits or high-decibel rap? (The military has done that in Panama and elsewhere.) How about truth serum, administered with a mandatory IV? Or deportation to Saudi Arabia, land of beheadings? (As the frustrated FBI has been threatening.) Some people still argue that we neednt rethink any of our old assumptions about law enforcement, but theyre hopelessly Sept. 10living in a country that no longer exists.
One sign of how much things have changed is the reaction to the antiterrorism bill, which cleared the Senate last week by a vote of 98-1. While the ACLU felt obliged to quibble with a provision or two, the opposition was tepid, even from staunch civil libertarians. That great quote from the late Chief Justice Robert JacksonThe Constitution is not a suicide pactis getting a good workout lately. This was incomparably more sober and sensible than what some of our revered presidents did, says Floyd Abrams, the First Amendment lawyer, referring to the severe restrictions on liberty imposed during the Civil War and World War I.
Fortunately, the new law stops short of threatening basic rights like free speech, which is essential in wartime to hold the government accountable. The bill makes it easier to wiretap (under the old rules, you had to get a warrant for each individual phone, an anachronism in a cellular age), easier to detain immigrants who wont talk and easier to follow money through the international laundering process. A welcome sunset provision means the expansion of surveillance will expire after four years. Thats an important precedent, though odds are these changes will end up being permanent. Its a new world.
Actually, the world hasnt changed as much as we have. The Israelis have been wrestling for years with the morality of torture. Until 1999 an interrogation technique called shaking was legal. It entailed holding a smelly bag over a suspects head in a dark room, then applying scary psychological torment. (To avoid lessening the potential impact on terrorists, I wont specify exactly what kind.) Even now, Israeli law leaves a little room for moderate physical pressure in what are called ticking time bomb cases, where extracting information is essential to saving hundreds of lives. The decision of when to apply it is left in the hands of law-enforcement officials.
For more than 20 years Harvard Law School professor Alan Dershowitz has argued to the Israelis that this is terribly unfair to the members of the security services. In a forthcoming book, Shouting Fire, he makes the case for what he calls a torture warrant, where judges would balance competing claims and make the call, as they do in issuing search warrants. Dershowitz says that as long as the fruits of such interrogation are used for investigation, not to convict the detainee (a violation of the Fifth Amendment right against self-incrimination), it could be constitutional here, too. Im not in favor of torture, but if youre going to have it, it should damn well have court approval, Dershowitz says.
Not surprisingly, judges and lawyers in both Israel and the United States dont agree. They prefer looking the other way to giving even mild torture techniques the patina of legality. This leaves them in a strange moral position. The torture they cant see (or that occurs after deportation) is harder on the person they claim to be concerned aboutthe detaineebut easier on their consciences. Out of sight, out of mind.
Short of physical torture, theres always sodium pentothal (truth serum). The FBI is eager to try it, and deserves the chance. Unfortunately, truth serum, first used on spies in World War II, makes suspects gabby but not necessarily truthful. The same goes for even the harshest torture. When the subject breaks, he often lies. Prisoners have only one objectiveto end the pain, says retired Col. Kenneth Allard, who was trained in interrogation. Its a huge limitation.
Some torture clearly works. Jordan broke the most notorious terrorist of the 1980s, Abu Nidal, by threatening his family. Philippine police reportedly helped crack the 1993 World Trade Center bombings (plus a plot to crash 11 U.S. airliners and kill the pope) by convincing a suspect that they were about to turn him over to the Israelis. Then theres painful Islamic justice, which has the added benefit of greater acceptance among Muslims.
We cant legalize physical torture; its contrary to American values. But even as we continue to speak out against human-rights abuses around the world, we need to keep an open mind about certain measures to fight terrorism, like court-sanctioned psychological interrogation. And well have to think about transferring some suspects to our less squeamish allies, even if thats hypocritical. Nobody said this was going to be pretty.
By Jim Rutenberg
New York Times
November 6, 2001
NEW YORK In many quarters, the Newsweek columnist Jonathan Alter is considered a liberal. Yet there he was last week, raising this question:
"In this autumn of anger," Mr. Alter wrote, "even a liberal can find his thoughts turning to ... torture." He added that he was not necessarily advocating the use of "cattle prods or rubber hoses" on men detained in the investigation into the terrorist attacks. Only, "something to jump-start the stalled investigation of the greatest crime in American history."
The column, titled "Time to Think About Torture," is worrying to human rights groups. The sense of alarm was heightened because Mr. Alter is just one of a growing number of voices in the mainstream U.S. news media raising, if not necessarily agreeing with, the idea of torturing terrorism suspects or detainees who refuse to talk. On Thursday night, the Fox News anchor Shepard Smith introduced a segment asking: "Should law enforcement be allowed to do anything, even terrible things, to make suspects spill the beans? Jon DuPre reports. You decide."
A week earlier, on the CNN program "Crossfire," the conservative commentator Tucker Carlson said: "Torture is bad. Keep in mind, some things are worse. And under certain circumstances, it may be the lesser of two evils. Because some evils are pretty evil."
The legitimacy of torture as an investigative tool is the latest in a progression of disturbing and horrific topics that news outlets are now presenting to audiences, like the potential of a biological attack on an American city or a terrorist nuclear strike, the kind that, as an article in The Economist put it in its latest issue, could cause the disappearance of a large part of Manhattan.
Some human rights advocates say they do not mind theoretical discussions about torture, as long as disapproval is expressed at the end. But they say that weighing the issue as a real possible course of action could begin the process of legitimizing a barbaric form of interrogation.
Journalists are approaching the subject cautiously. But some said last week that they were duty-bound to address it when suspects and detainees who have refused to talk could have information that could save thousands of lives. Plus, they added, torture is already a topic of discussion in bars, on commuter trains and at dinner tables. And last, they said, well, this is war.
The historian Jay Winik, in an opinion article on Oct. 23 in The Wall Street Journal, detailed the reported torture in 1995 of the convicted terrorist plotter Abdul Hakim Murad by the Philippine authorities that led to the foiling of a plot to crash nearly a dozen U.S. commercial aircraft into the Pacific and another into CIA headquarters in Virginia.
Mr. Winik went on to write: "One wonders, of course, what would have happened if Murad had been in American custody?" He did not, however, endorse the use of torture but suggested that the United States might have to significantly curtail civil liberties, as it had done in past wars.
Mr. Alter said he was surprised that his column did not provoke a big flood of e-mail messages or letters. And perhaps even more surprising, he said, was that he had been approached by "people who might be described as being on the left whispering, 'I agree with you.'"
The problem with those comments, Mr. Alter said, is that they presume that by writing about torture, he is advocating it, which he said he was not doing, as evident in his point about the likelihood that torture could produce false information.
The Fox News Channel was less apologetic about its report Thursday night, in which advocates for torture said desperate times called for desperate measures; critics said that by abusing suspects, the United States would lose its moral standing in pressuring other governments on human rights violations.
"They're sitting around and not talking and may have information that could save American lives here and abroad," Bill Shine, the executive producer of the Fox News Channel, said of current government detainees. "And people are starting to say how can we get information out of them while respecting their constitutional rights."
But where Fox News Channel was willing to run a traditional, network-news-style segment on the pros and cons of torture and suspending the writ of habeas corpus, the broadcast news divisions have shied away from this. Jim Murphy, the executive producer of the CBS News program "Evening News with Dan Rather," said he would address the topic only if a correspondent found that law enforcement was seriously considering using torture. Mr. Murphy said speculation about torture and discussion of its merits were, for now, best left to talk shows and columnists. Of course, even that level of discourse is considerably disturbing to groups like Human Rights Watch and Amnesty International, which criticize the use of torture by regimes around the world. And yet even their leaders said they understood the source of the sentiments.
"It reflects people's fear and the somewhat unexamined instinct to do whatever it takes to meet the threat," said Kenneth Roth, executive director of Human Rights Watch. "And when people step back for a moment, they understand there are reasons why you don't want to open the door."
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