This is an essay I had to write for an English class in response to an article that advocates legalizing torture.
Alan M. Dershowitz - Is There a Torturous Road to Justice?
Recently, it has been made public that the United States has been engaging in acts which are arguably torture. This has ignited a debate as to whether or not it is justifiable to torture, and if so, under what circumstances it becomes acceptable. Alan Dershowitz argues that torture should be legalized under some circumstances in “Is There a Torturous Road to Justice?” However, this debate should never even need to occur. Torture is morally wrong, and there are no circumstances under which it is acceptable.
The United States is a country founded on the principles of freedom and liberty. More-so than many modern democracies it holds those ideals as its cardinal rules. To legalize, and thus advocate, torture would be contrary to everything the United States is founded upon.
In his article, Dershowitz states that with respect to the 5th amendment, “Any interrogation technique...even torture, is not prohibited. All that is prohibited is the introduction into evidence of the fruits of such techniques in a criminal trial against the person on whom the techniques were used” (85). However, that only seems to address self-incrimination. The 8th amendment states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Note that there are no qualifiers for whether or not cruel and unusual punishments may be inflicted. It may not be used under any circumstances. If torture is not a cruel and unusual punishment, then what is? If it is claimed that it is not a punishment because it is merely a means to an ends, an interrogation technique, then how can the interrogation be worse than the punishment?
The question Dershowitz seems to be addressing here is if we can torture legally, when the real question is if we should. While some may insist that torture is necessary to combat terrorism, this is not true. Contrary to general belief, the goal of terrorism is not to kill. The goal of terrorism is to bring about whatever change the terrorist desires, using terror as the impetus. Terrorists kill because it causes fear, which in turn, causes irrational behavior that the terrorists hope will benefit them. Terrorism alone has no ability to destroy a nation; it needs the nation to do that itself. By accepting torture, even on a small scale, the United States would be destroying a part of itself.
From 1968 to 2006 there were 3,227 deaths from terrorism in the United States (NationMaster.com). That is 85 deaths per year from terrorism in the United States. For comparison, there were an average of 29 deaths a year from dog attacks in the United States from 2005 to 2009 (Wikipedia). Common pain killers, like aspirin, kill close to 8,000 per year in the United States (Robyn Tamblyn, et al.). The average person does not spend much time worrying about dog attacks or aspirin killing them. That is because they are, like terrorism, unlikely ways to die. The difference is that terrorism is designed to instill fear, and all too often is successful.
Terrorism is neither a threat to national or personal survival. The only threat it poses is the fear it can instill—fear which could lead to rash decisions. Decisions like legalizing torture, which are not acceptable in a civilized society. We do not need to legalize torture to combat terrorism, because terrorism cannot hurt us unless we allow it. The question of if we can legalize torture does not even need to be addressed. There is no need to compromise everything we stand for when there is not even a serious threat.
Extreme examples are often raised in an attempt to illustrate a time when torture might be acceptable. Dershowitz poses one such example: “consider a situation in which a kidnapped child had been buried in a box with two hours of oxygen. The kidnapper refuses to disclose its location. Should we not consider torture in that situation?” (86). A person, even one opposed to torture, might be tempted to accept it in this case. However, there are several reasons why even in the extreme cases torture is still unacceptable.
First, these extreme cases are extremely rare, so rare that they border on nonexistent. Children hidden in buried boxes and terrorists with ticking time bombs hidden in a secret location are the stuff of movies. Making grand decisions—that will doom hundreds or thousands to torture—based on these fantasies is absurd. Laws should be based on rational decisions and facts.
Second, an extreme case, with a ticking clock, and pressure to make the right move, is exactly the time when mistakes are most likely to be made. In this case, how can facts be weighed and it be judged that a person has information which could save lives in hours or minutes? How can it be certain that the right person is about to be tortured, or that they even know what they are alleged to know? The answer is to issue these “torture warrants” with little to no oversight beforehand. If there is a review process afterward, what would be done if an innocent person was tortured? The answer is likely nothing, or at least nothing that would matter to the person who had to endure the torture due to a mistake.
Third, it is easy to say that the torture of someone particularly evil, in order to save lives, is justified. However, having the moral high ground means never compromising, even when it may be justified. Even in war there are things which are not done to the enemy, e.g., the use of poison gas or land mines, even though they would save lives, even if the enemy is doing those very things. It has never been said that being above reproach is easy.
History has shown that powers given to the government will be abused. Dershowitz himself admits that many modern investigation powers have been abused. Warrantless wiretapping, which was justified under the same fear of terrorism that is now being used to justify torture, expanded tremendously. It is now five years since the public was made aware of warrantless wiretapping. In this time no individuals were punished for the abuses of power. In addition, there is no certainty that the program has been stopped. The key to preventing governmental abuse of power is to not allow the power in the first place.
Dershowitz ends with a tenuous piece of logic. He states that in an actual situation, where lives are at stake, and torture seems like it could save them, investigators are likely to use torture anyway. Why not then provide a legal framework for it? The answer to this is the same reason we do not provide a legal framework for murder, even in situations when it is likely to happen anyway. The fact that something is going to happen anyway is not a reason to legalize it. Also, if the investigators are going to do it anyway, but are denied the “torture warrant”, then why would they be stopped by that? After all, they were going to use torture even when it was completely illegal. The answer to someone doing something illegal is not to legalize it. The answer is to expend greater energy on prosecuting those who break the law.
It could be argued that it is wrong to allow someone to die in order to simply maintain a high moral standing. However, we already do this when we allow murderers, who may kill again, to go free when the evidence gathered against them was gained illegally. No one is happy about this, but the alternative is worse. The alternative is allowing the use of evidence gained by immoral means, and thus to allow those means to exist, and that, like torture, is unacceptable.
Some might argue that I would feel differently about torture if it could potentially save me or someone close to me. To this allegation, I have to say that of course I would. Similarly, if someone close to me was murdered, I would feel very differently about cruel and unusual punishment, and the use of evidence gained by any methods. In other words, I would be so emotional I would not be making rational decisions. Luckily, legal processes are not run by the families of victims. Rather, they are run by cool-headed, and impartial, third parties. These third parties know that sometimes an injustice must go unpunished to prevent a greater injustice from taking hold.
Legalizing torture, even in rare cases, will put a seal of approval on it. It would show that the United States is willing to compromise its principles when it feels threatened. It would show the terrorists that they can in fact cause the United States to give up its principles. There is no real threat posed by terrorism, and thus no need to look to extraordinary measures to combat it. If torture is legalized it will be done out of fear, not rational thought. By legalizing it in some absurdly rare cases we gain nothing, and lose everything.
Works Cited:
Alan M. Dershowitz, “Is There a Torturous Road to Justice?”
Elements of Argument (2010): 85-86.
Wikipedia contributors. "List of fatal dog attacks in the United States."
Wikipedia, The Free Encyclopedia. Wikipedia, The Free Encyclopedia, 22 Sep. 2010. Web. 5 Oct. 2010.
Robyn Tamblyn, et al. “Unnecessary Prescribing of NSAIDs and the Management of NSAID- Related Gastropathy in Medical Practice”
Ann Intern Med September 15, 1997 127:429-438;
“Terrorism Statistics > Terrorist Acts > 1968-2006 > Fatalities (most recent) by country” NationMaster.com
http://www.nationmaster.com/graph/ter_ter_act_196_fat-terrorist-acts- 1968-2006-fatalities
