License to Torture: Dershowitz vs Scarry - Essay Example

?License to Torture: Dershowitz vs Scarry Introduction As a rule, torture is presumably one of those issues liberal societies are most averse to. However, in the light of several major acts of terror that have occurred a relatively short time ago and claimed thousands of lives in America and Europe alone, the use of torture as a means to obtain vital information, which would prevent destruction on a massive scale and save human life, became more or less a standard practice of the respective security services. Correspondingly, it’s increasingly becoming a focus of the public debate. Being considered of crucial importance to both the very existence of liberal states and societies and regard for liberal values, the torture issue has divided the academia, the judiciary and the public opinion as well. This paper examines the pivotal differences between Alan Dershowitz and Elaine Scarry on the question of physical torture in order to determine whether the arguments of the former are adequately tackled by the latter as well as the actual possibility of establishment of public accountability standards for extraordinary measures such as the use of physical torture to prevent terrorism. The Ticking Bomb Argument The controversy surrounding the use of torture to prevent terrorism is explicitly demonstrated via the “ticking bomb scenario”, where a captured terrorist refuses to divulge information concerning the imminent use of weapon – whether nuclear, biological or chemical device – capable of killing and injuring a huge number of civilians (Dershowitz 259). The grave moral dilemma here is whether the captured terrorist should be subjected to torture in order to disclose the location of the device or the bomb to be allowed to explode and kill perhaps thousands of people because of legal and moral considerations. In other words, the safety and security of a nation’s citizens must be weighed against the preservation of human rights, which engenders a choice between one evil or another (Dershowitz 266, 272). While both Dershowitz and Scarry agree that the ‘ticking bomb’ scenario is a rather hypothetical situation, they consider its implications for the individuals and institutions involved, as well as for the society as a whole, from vastly different points of view. According to Dershowitz, in nations such as Israel, for example, where both terrorism and the use of torture to prevent terrorism are anything but hypothetical, the ticking bomb case in fact provides a moral, legal and intellectual justification for applying the system of coercive interrogation (258-9). On the other hand, although being generally deemed unproductive, those methods – euphemistically called by the Israeli Security Services (GSS or Shin Bet) themselves “moderate physical pressure” – sometimes proved successful and led to prevention of terrorist acts that otherwise might have killed many civilians (Dershowitz 258). The latter observation, however, implies that the possibility of an actual ‘ticking bomb’ case shouldn’t be readily ruled out. Similarly, following September 11, 2001, it has become not so rare practice in the US security and intelligence services to employ rough interrogation techniques, which more or less border on torture, in order to obtain information from suspected terrorists (Dershowitz, 258, 264). Thus, in both cases, a democratic, law-abiding society has entrusted the responsibility for such a difficult choice, as the inherent in the ‘ticking bomb’ scenario, to low-level law enforcement officials; whereas legislative sanction and judiciary control, hence placing responsibility for difficult choices in visible and neutral institutions, are considered the essence of democracy (Dershowitz, 264). Additionally, as Dershowitz points out, the individual members of the security services could either lose their job or being imprisoned, because they honestly believed that, in a particular situation, applying rough interrogation techniques was the only way to save civilian lives (263). Or alternatively, the agents could commit perjury – another grave criminal offense – denying under oath that they used such interrogation techniques. Thus in Dershowitz’s view, apart from the perfidy, the current policy of “willful blindness” is anything but beneficial to democratic nations; moreover, it deepens the problem, since lack of effective limitations and accountability will bring about the further expansion of that practice (265). By contrast, Scarry enters into the ticking bomb argument from a position which apparently claims the moral high ground – having stated that the “unwavering prohibition against torture must be kept in place”, she prefers leaving the decision on whether or not to apply torture and save human lives solely to the discretion of the individual, or individuals, who conduct the interrogation (282). Thus, Scarry would like to see on the one hand liberal values being in place, but on the other hand someone – “large-spirited enough” to overcome both his aversion to torture and his own legal culpability, hence punishment – to forfeit his personal liberty, saving the lives and property of society members (282-3). Scarry’s arguments are based on the presumption that certain attributes like courage and selfless devotion to duty are widespread among the general populace so if an “imaginable’ ticking bomb situation ever occurs, anyone confronted with the choices stemming from that instance “would almost certainly” do the right thing; which, as stated above, in Scarry’s view is “to save the Earth”, i.e. breaking the law and being imprisoned (282-3). Scarry goes even further, assuming that the forfeit of one’s personal liberty – as the direct result of the torture act – “requires that some portion of the severe adversity be endured by the actor himself” (283); which, to a degree or another, refers the whole case to the field of criminal justice. However, an important consideration is somehow missing in Scarry’s reasoning. Apart from their specific nature, the duties of a security services’ member, including the interrogation of suspected terrorist, actually constitute a job, hence they and their families rely on it, and whose purpose, like that of a pilot, medical doctor, etc., is to contribute to the society’s prosperity – in the given case by guaranteeing the safety of the society members and their way of life. Therefore, if the security service members failed to “save the city”, they would be either fired or downgraded, but if they undertook all that in their view is deemed necessary to perform their duties, i.e. to “save the city”, according to Scarry, they should be subjected to criminal prosecution (282). To put it in a nutshell, it’s a classic Catch-22 situation, which – as Dershowitz points out – is “unfair to such investigators” (263). Having focused on actual plausibility of the ticking bomb case per se, Scarry lavishly quotes evidence pointing to the conclusion that torture is untrustworthy as a method to prevent acts of terrorism, either due to the insufficient time for an adequate reaction – as in the case of the 9/11 hijackers – or because of the uncertainty regarding the level of confidence (284). On the other hand, however, Scarry fails to explain – by the way, just as the president of the Supreme Court of Israel – how a democracy would “fight with one hand tied behind its back” and nevertheless could eventually have the upper hand (Dershowitz 263); especially given the fact that not all necessary information could be obtained via surveillance, bugging and other non-violent techniques. Besides, intruding into one’s personal life is also illegal, and potentially just as outrageous and dangerous as physical coercion, but is generally accepted if authorized by the judiciary. Implications for the law and democracy Having emphasized the fact that various forms of torture are currently widespread among nations, which have signed international treaties outlawing all kinds of torture and similar abuses, Dershowitz proposes a rather straightforward and controversial approach (257-8). Instead of what he calls hypocritical posturing – where torture is being tolerated without any accountability – Dershowitz argues in favor of legislative sanction for judicial scrutiny, “akin to the warrant requirement” in the Fourth Amendment to the US Constitution” (257, 263). Indeed, such a proposal generally amounts to heresy insofar as comes from a civil libertarian, who – according to Dershowitz’s own words – “has devoted much of his life to defending human rights against governmental overreaching” as well as strongly condemned the rough interrogation methods employed by GSS as a violation of basic human rights (258). Nevertheless, Dershowitz believes that if such a horrible practice continues to operate “below the radar screen of accountability”, there would be ever expanding employment of that practice (267). Besides the arguments related to the ticking bomb scenario, as considered above, Scarry rejects the possibility of such development on the grounds that legal immunity will eliminate the innate aversion to cruelty, which would act as a way to test anyone’s “conviction that thousands of lives are at risk” and he or she is “uniquely positioned to act as their savior” (285). This counterargument should obviously include a judge, who is supposed to discriminate between torture-acceptable and unacceptable cases (Scarry 286). Although ringing true, this argument fails to persuade anyone unbiased insofar as in democratic countries, like the US, judges are supposed to discriminate between cases inflicting death penalty and others that do not; hence the logical question – does torture pose greater threat to society than the legitimized murder? Finally, Scarry fails to explain how the current practice of security services fighting against terrorism in “’a twilight zone’ which is outside the realm of law”, will contribute to the liberal values and maintain the law-abiding character of a state (Dershowitz 260). Conclusion All in all, both Dershowitz and Scarry are definitely against torture and would like to see its use minimized, if not eradicated. However, their conflicting views on the issue stem from the greatly different capacities they speak in – Dershowitz as a lawyer with a knowledge and vast experience of working within the legal system, and Scarry as an intellectual and theorist, whose position is grounded in moral and emotional categories, rather than rational choice. Not surprisingly therefore, Scarry not only fails to understand Dershowitz’s motives behind his arguments for the legalization of torture, or practices that border on it, but also inadequately addresses the issue itself. What exclusively concerns Dershowitz is the fact that politicians, with the connivance of society, turn a blind eye to existing torture practices, instead of banning them effectively or imposing regulations, which would eventually lead to the abandonment of such practices. In turn, Scarry is concerned with the rejection of torture in principle, rather than considering a particular situation with all its peculiarities and inherent complexities. Despite some resonances with the Gross’ extra-legal measures model, i.e. a possibility of further constitutional accommodation of emergencies, like the war on terror, Dershowitz’s proposal of judicial review and control over torture could be considered much more lawful, as well as complying with the law-abiding character of a democracy, as against the current ineffective formal ban on torture. On the other hand, there are certain inadequacies, most notably the compliance with the international convention against torture, the “willingness” of the judiciary to dirty their hands, and the probability that torture will become a common practice; which may eventually compromise the whole effort. Works Cited Dershowitz, Alan. “Tortured Reasoning”. Torture: A Collection. Ed. Sanford Levinson. New York: Oxford University Press, Inc., 2004. Print. pp. 257-279. Scarry, Elaine. “Five Errors in the Reasoning of Alan Dershowitz”. Torture: A Collection. Ed. Sanford Levinson. New York: Oxford University Press, Inc., 2004. Print. pp. 281-289. Read More