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.
