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Commentary

Stop Winking at Torture and Codify It

U.S. must decide which interrogation tactics are allowable and which aren't.

June 13, 2004|Alan M. Dershowitz | Alan M. Dershowitz is a professor of law at Harvard. His latest book is "America on Trial."

Atty. Gen. John Ashcroft's recent testimony that President Bush had "made no direct order" authorizing any of the practices photographed at Abu Ghraib prison was calculated to cloak the president with deniability. But it raises the real question: What constitutes the kind of "torture" that, according to Ashcroft, "this administration opposes"? And what exactly are the information-gathering techniques that the Bush administration does approve of? We don't know because it refuses to be specific, opting instead for the wink-and-nod approach -- publicly condemning torture in a general sort of way while discreetly demanding results by whatever means it takes.

This approach would be far more difficult if explicit approval from the president were required for any extraordinary interrogation methods. Such a "torture warrant" approach would force the president to specify precisely what is allowed and what is not: sleep deprivation? hooding? stress positions? threats? attack dogs? sexual humiliation? a sterilized needle under the nail?

A codification of torture would be controversial, of course, but it would produce accountability of precisely the kind this administration wants to avoid. To date, only one other democracy has ever openly confronted this issue -- Israel.

Before 1999, Israel tried to come to terms with the torture issue. Rather than denying it publicly and winking at it privately like many other countries (and many police forces even in the United States), Israeli officials sought to codify what was and was not permissible in order to wage the most effective battle against terrorism within the rule of law.

They set out rules allowing "moderate physical pressure" in specific cases -- including such nonlethal tactics as sleep deprivation, tying up prisoners in painful positions with hoods over their heads, violent shaking and loud music. The argument was that such measures were justified in "ticking bomb" cases in which getting instant information out of a terrorist suspect about an imminent attack was essential.

Esther Wachsman, for example, whose son was kidnapped by militants, has said she knew Israeli agents tortured a captured Palestinian to force him to reveal the 19-year-old's whereabouts and that she had no regrets about it. "Was this man going to reveal this kind of information if they served him tea and played some Mozart?" she asked.

For some years the rules were in place, even though opponents argued that torture of any kind was a black-and-white issue -- always wrong, never allowable.

In the end, the Israeli Supreme Court issued a decision in 1999 prohibiting all forms of rough interrogation. In rendering this decision, the court described in detail what was prohibited: shaking, stress positions, hooding, playing "powerfully loud music" and other physical pressures. The court did leave open a tiny window in ticking-bomb cases. It suggested that if an interrogator honestly and reasonably believed that the only way to prevent an attack was to apply moderate physical pressure, he could try to persuade a court after the fact that his actions fell under the defense of "necessity." Thus far, no such defense has been offered.

This decision stimulated an important debate inside and outside of Israel. It is unlikely that it ended all physical abuse, but even Israel's most strident critics acknowledge that it has certainly been curtailed.

The Israeli high court thrust itself into the debate over interrogation methods. The U.S. Supreme Court, on the other hand, seems to be trying to stay away from micromanaging interrogation techniques. In a recent decision, a majority ruled that the 5th Amendment does not prohibit torture itself -- only the use of self-incriminating statements produced by torture in criminal prosecutions. Nor does the 8th Amendment's prohibition against "cruel and unusual punishment" preclude torture of detainees, because it applies only to punishments imposed after conviction. That leaves only the vague "due process" clause, which is in disrepute among a majority of the justices.

We need an open and candid debate, as Israel had, about what forms of rough interrogation, if any, should be permissible against what kinds of detainees under what circumstances. Specificity is required. Broad generalizations like "this administration opposes torture" have not worked and will not work in the future. A proposed interrogation code would be a good starting point.

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