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Alan Dershowitz: "The US is now, currently engaged in torturing people" The law of torture Radio Netherlands: 04/18/03
PRESS PLAY TO LISTEN Transcript: With US troops in Iraq having caught only a handful of high-level members of Saddam Hussein's destroyed regime, pressure is mounting to discover the whereabouts of remaining Iraqi fugitives. The invading coalition forces have also failed to discover significant amounts of proscribed chemical, biological, or nuclear weapons, undermining one of the key justifications of the war, and increasing reliance on key information known only to Iraqi prisoners. Harvard law professor Alan Dershowitz says this pressing need for information means that torture is now undoubtedly already being used by coalition forces in Iraq. In this Radio Netherlands interview, he explains why he believes it would be better to legislate the use of torture rather than pretend it doesn't exist: "We know in every war prisoners of war who are captured on the field are tortured to obtain information. It happened in the First World War, it happened in the Second World War, it will happen in any ongoing battle. And so the question is, should it be done with accountability? The US Court of Appeal recently ruled that there is no judicial control over what happens on the battlefield or what happens in Guantanamo, and that's wrong. There should always be judicial control. The US is now, currently engaged in torturing people in two different ways. One directly; we're making people stand on tiptoes, with their arms chained to walls, naked. We're slapping them, and pistol-whipping them according to The New York Times and The Wall Street Journal, in one case we refused to administer painkillers to someone we had shot and wounded during capture. And then, even worse, indirectly; we are subcontracting our torture to other countries. We are sending people to the Philippines, to Jordan, to Egypt, to Morocco, countries that we know will torture people, and we are making use of their torture information. So the worse thing to do is not discuss it, we must discuss it, and it's the obligation of an academic, of a professor, to discuss the undiscussable." RN: "Is it better then to have some sort of legal precedent for what is going on?" "I think we should never do anything in a democratic society unless we are prepared to include it within the law. If we are not prepared to include it within the law we should not be doing it, and if we are doing it, we should be prepared to have accountability, record-keeping, authorisation from the President or the Chief Justice of the Supreme Court. Democracy requires accountability." RN: "Why is it better to have it out in the open, if it is still going to go on regardless?" "Because it might not go on if we do it out in the open. There might be public protests against it. There will be limitations imposed, for instance the distinction between lethal and non-lethal physical force, the requirement of a high degree of necessity. The only way you get limitations is with public accountability, otherwise you get the slippery slope." RN: "You have spoken a little about a torture warrant, where investigators who are trying to get information from a suspect would have to get a warrant, say, from a judge. Could you just explain to me how that would work and under what circumstances." "Well, I don't myself approve of torture. But I am arguing
that every democracy – the Netherlands, England, France, Germany,
every democracy, the US, Israel – will engage in torture, and my
requirement would be that if you are going to do it, you have to give
advance approval, you have to show the justification, you have to
explain the sources of your information, you have show it's the last
resort, and you have to allow the judge to impose limits on what
you're allowed to do. For instance, in Jordan, they torture the
relatives of terrorists; we would not permit that in a democratic
country under any circumstances, the torturing of innocent relatives.
But a guilty terrorist, being subjected to painful but non-permanent
injury, might be permitted. These are the kinds of distinctions and
limitations that civilised society ought to be discussing."
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