June 15, 2004


Stop Winking at Torture and Codify It: U.S. must decide which interrogation tactics are allowable and which aren't. (Alan M. Dershowitz, June 13, 2004, LA Times)

Before 1999, Israel tried to come to terms with the torture issue. Rather than denying it publicly and winking at it privately like many other countries (and many police forces even in the United States), Israeli officials sought to codify what was and was not permissible in order to wage the most effective battle against terrorism within the rule of law.
They set out rules allowing "moderate physical pressure" in specific cases — including such nonlethal tactics as sleep deprivation, tying up prisoners in painful positions with hoods over their heads, violent shaking and loud music. The argument was that such measures were justified in "ticking bomb" cases in which getting instant information out of a terrorist suspect about an imminent attack was essential.

Esther Wachsman, for example, whose son was kidnapped by militants, has said she knew Israeli agents tortured a captured Palestinian to force him to reveal the 19-year-old's whereabouts and that she had no regrets about it. "Was this man going to reveal this kind of information if they served him tea and played some Mozart?" she asked.

For some years the rules were in place, even though opponents argued that torture of any kind was a black-and-white issue — always wrong, never allowable.

In the end, the Israeli Supreme Court issued a decision in 1999 prohibiting all forms of rough interrogation. In rendering this decision, the court described in detail what was prohibited: shaking, stress positions, hooding, playing "powerfully loud music" and other physical pressures. The court did leave open a tiny window in ticking-bomb cases. It suggested that if an interrogator honestly and reasonably believed that the only way to prevent an attack was to apply moderate physical pressure, he could try to persuade a court after the fact that his actions fell under the defense of "necessity." Thus far, no such defense has been offered. [...]

We need an open and candid debate, as Israel had, about what forms of rough interrogation, if any, should be permissible against what kinds of detainees under what circumstances. Specificity is required. Broad generalizations like "this administration opposes torture" have not worked and will not work in the future. A proposed interrogation code would be a good starting point.

Especially when we're allowed to indulge our worst instincts we need to keep them within certain set bounds.

Posted by Orrin Judd at June 15, 2004 8:19 AM

I continue to hold that Prof. Dershowitz is dead wrong about this. Torture should never be legal, and no court should ever dirty its hands with it. If exigent circumstances make microwave therapy or open-door helicopter rides necessary, such expedients must take place, as they always have, in the shadows.

Posted by: Lou Gots at June 15, 2004 12:56 PM

Even if we had rules, we'd still not have any way to know when to use them.

Who do you torture? When? Why?

By definition, you don't know beforehand whether the torturee has information you can rely on.

Posted by: Harry Eagar at June 16, 2004 3:33 AM