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Painful Moral Questions

German issue is one for U.S. too: Can torture, or the threat of it, be right?

April 17, 2003|Alan M. Dershowitz | Alan M. Dershowitz is a professor at Harvard Law School and author of "Why Terrorism Works" (2002, Yale University Press).

Suppose for a moment that your child has been kidnapped and that his kidnapper has just been captured. Now suppose that the kidnapper refused to disclose your child's whereabouts. Would you want the police to resort to torture if that was what it took to save your child?

That's the question currently being debated throughout Germany. It's not a hypothetical scenario, like one you might study in law school. It's a flesh-and-blood case involving the 11-year-old son of a German financier who was kidnapped in September in Frankfurt.

When the kidnapper refused to lead police to his victim, the police chief gave his officers permission to torture him. The chief later described what went on in his mind: "I thought, I can sit with my hands in my lap and wait until [the kidnapper] maybe, at some point, decides to tell the truth and in the meantime the child is long dead. Or I do everything I can now to prevent just that."

The chief put his authorization in writing, telling his officers they could extract the information "by means of infliction of pain, under medical supervision and subject to prior warning." It was the equivalent of an administrative torture warrant.

But as it happened, torture never became necessary. As soon as the police told the kidnapper they were calling in a "specialist" who would inflict pain he "had never before experienced," the kidnapper immediately took police to the boy, who was already dead.

The manner by which the case unfolded raises several interesting ethical and legal questions. First, even if you think it is wrong to torture someone, is it equally wrong to threaten him with torture? What if the police never intended to touch him, just scare him?

Answering those questions requires several pieces of information. For instance, it makes an important difference whether the information secured by the threat was going to be introduced against the kidnapper at his trial or whether the threat was used merely to help find the child. Threatening torture to win a confession is clearly wrong (though it is certainly not unheard of, even in routine murder cases in the United States), and the threat alone is probably enough to require the exclusion of the evidence. Confessions elicited by threat are not "voluntary" and may not be credible. The German courts have so ruled in this case.

But it is not so clear whether threatening torture to save a life is itself criminal. That question may soon be answered by the German courts, because the chief is now under investigation for the crime of authorizing torture.

The moral issue will remain, regardless of what the courts decide. For most Germans it's a no-brainer. Polls show that most Germans think that the threat was a reasonable, practical, painless, common-sense method that could potentially have saved a life. But then, most Germans and most Americans would probably give the same answer even if torture had actually been used, despite the moral difference between trickery and violence.

Many legal scholars and human rights activists are appalled that the possibility of torture -- even nonlethal torture -- is being openly discussed. They fear that the discussion itself will lend legitimacy to a barbaric practice. This is of special concern to Germans, who recall that only 60 years ago the Nazi Gestapo specialized in torture.

In the United States as well there is an understandable abhorrence of sliding down the slippery slope toward the rack. But the reality is that we started down that slope after Sept. 11. The U.S. government is currently using what one Western intelligence official describes as "not quite torture but about as close as you can get."

According to news accounts, the pattern being followed by American interrogators includes forcing detainees to stand naked with "their hands chained to the ceiling and their feet shackled." Their heads are covered with black hoods; they are forced "to stand or kneel in uncomfortable positions in extreme cold or heat"; deprived of sleep; fed very little; and exposed to disorienting sounds and lights. According to some sources they are "manhandled" and beaten.

In one case involving a high-ranking Al Qaeda operative, "painkillers were withheld from Mr. [Abu] Zubaydah, who [had been] shot several times during his capture...." Moreover, it is widely believed that the U.S. sends some captured terrorists to other countries -- such as Egypt, Jordan and the Philippines -- which are well known for the brutality of their torture methods. We then use the information they extracted without asking questions about their methods.

The Germans are at least debating the morality and legality of employing torture, or the threat of torture, when an innocent life may be at stake. Here at home, we seem to be slipping silently toward accepting some nonlethal torture without any debate, deliberation or high-level authorization at all. In a democracy, extreme measures require, at the very least, accountability. So let's start the public debate about torture, the threat of torture and other unpleasant options and tragic choices.

Perhaps we will conclude that the best solution is to codify limited exceptions that distinguish between threatened and actual torture, between evidentiary and lifesaving uses, and even between one innocent life and many.

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