Dershowitz vs. Scarry on Torture
Dershowitz “Tortured Reasoning”
“Nonlethal torture is currently being used by the U.S. in an effort to secure information deemed necessary to prevent acts of terrorism.”
“All forms of torture are widespread among nations that have signed treaties prohibiting all torture. The current situation is unacceptable: it tolerates torture without accountability and encourages hypocritical posturing.”
“[Torture] would certainly be employed if we ever experienced an imminent threat of mass casualty biological, chemical, or nuclear terrorism.”
“If torture is being or will be practiced, is it worse to close our eyes to it and tolerate its use by low-level law enforcement officials without accountability, or instead to bring it to the surface by requiring that a warrant of some kind be required as a precondition to the infliction of any type of torture under any circumstances?”
Moderate Physical Pressure, Enhanced Interrogation Techniques, and Terror Lite
The Ticking Time Bomb Case Revisited
The Purist Position
“[My] goal was, and remains, to reduce the use of torture to the smallest amount and degree possible, while creating public accountability for its rare use.”
Torture Warrants: “Such a procedure would require judges to dirty their hands by authorizing torture warrants or bear the responsibility for failing to do so. Individual interrogators should have to place their liberty at risk by guessing how a court might ultimately decide a case.”
“If torture would, in fact be employed by a democratic nation under the circumstances, would the rule of law and principles of accountability require that any use of torture be subject to some kind of judicial oversight or control?”
Torture: Don’t Ask, Don’t Tell?
“I am against torture as a normative matter, and I would like to see its use minimized.”
“My own belief is that a warrant requirement, if properly enforced, would probably reduce the frequency, severity, and duration of torture.”
“The major downside of any warrant procedure would be its legitimization of a horrible practice, but in my view it is better to legitimate and control a specific practice that will occur than to legitimate a general practice of tolerating extralegal actions so long as they operate under the table of scrutiny and beneath the radar screen of accountability.”
“Several important values are pitted against each other in this conflict. The first is the safety and security of the nation’s citizens….the second value is the preservation of civil liberties and human rights…[and] the third important value [is]…open accountability and visibility in a democracy.”
“No legal system operating under the rule of law should ever tolerate an ‘off the books’ approach to necessity…if it is necessary to torture in the ticking time bomb case, then our governing laws must accommodate this practice.”
Scarry, “Five Errors in the Reasoning of Dershowitz”
“To summarize, then, the ticking time bomb scenario, with warrant as a license to torture, presents us with three major problems: (1) it assumes a population that is (against robust evidence) cowardly and self-regarding—able and willing to torture but unable and unwilling to themselves suffer harm; (2) it assumes a population that is (against robust evidence) omniscient; and (3) by providing legal immunity, it eliminates the felt-aversiveness to cruelty that acts as a way to test one’s level of conviction that thousands of lives are at risk and that one is uniquely positioned to act as their savior.”
“The torture warrant system, then, appears to leave us with an unknowable number of illegal instances that cannot be reviewed (that is, cannot be reviewed in any way that is not already available to us under our current blanket prohibition) and a knowable number of legal instances that because they have been warranted are unlikely to be reviewed—even in the way that is currently available to us under the blanket prohibition system.”
“The fourth is that Alan dershowitz credits the warranting system with a power to provide documentation and accountability that it does not appear to have. The fifth is that his proposal greatly undercredits the forms of documentation and accountability already available to us. These allow us continually to strive for some measure of accountability, while keeping national and international prohibitions on torture fully in place.”
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