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No Victory in Torture - Nov. 12, 2001

By James L. Hirsen, J.D., Ph.D.
contributor to

We are hearing rumblings from places that we would never expect. In Newsweek magazine, Jonathan Alter writes that it is "Time to Think about Torture." Alan Dershowitz argues that we might soon make requests for "torture warrants." And numerous journalists ask a question that, in the United States of America, we are completely unaccustomed to hearing: Should our government torture terrorism suspects?

It is safe to say that most people are uncomfortable with the topic and find it difficult to contemplate its possible application. But then again we are at war and find ourselves dealing with a whole host of issues that are at times burdensome, and at other times intensely sobering.

If our country were ever to employ a strategy of torture, an official policy would first have to be instituted.

Such a policy has been attempted in Israel. Israel authorized what it termed "moderate physical pressure" to extract information from terror suspects, where lives were deemed in imminent danger. Techniques included the use of foul odors, sleep deprivation, cold showers, painful physical positioning and an array of similar practices.

Unfortunately, thousands of suspects were abused by liberal use of what was intended to be reserved for extremely exigent circumstances. Limitations on implementation were so loosely defined that some suspects actually died from exercise of "controlled" methods.

If professionals are trained in the art of physical and mental coercion, some may view their specialty in utilitarian terms. Their job's success will be defined by the information that they extract. The temptation to make the end justify the means is too great to place upon the subjective discretion of law enforcement.

Traditional and less controversial approaches that encourage cooperation from suspects are available. These include the perennial plea bargain or the threat of harsh sentencing.

Ed Zwick's 1998 film, "The Siege," contained a scene that is pertinent to this
discussion. In the movie, a U.S. general concludes that torture is the way to counter the fictional terror assault on New York City. Denzel Washington's character makes a moving speech, which invokes the principles that make America unique ­ due process, the rule of law, fair trials, inalienable rights.

America has a rich history of legal precedents that date back to our founding. Such precedents forbid the torture of suspects.

It is no casual insertion contained in the Eighth Amendment that states: " cruel and unusual punishment [shall not be] inflicted.

It is this very practice of treating certain members of society as subhuman that so repulses us when we examine the way the Taliban treats women, dissidents and people of other faiths.

Some people see a loophole in the torture debate. We could send suspects out for "processing." We could send the individuals to other countries, countries where torture is allowed. In that way we could delegate the dirty work.

But Americans have never been Pontius Pilates. We know that washing our hands does not exempt us from responsibility.

President Bush has rightly characterized the fight against terrorism as a war. War came to our continental shores, and we must contend with the extraordinary state of affairs. But we cannot become that which we fight.

Warrants are good, but not for torture. In this war, if a judge could be persuaded that lives were in imminent danger, approved truth serums such as sodium pentathol might be utilized. Serums may not be as effective as physical torment, but they are not as barbarous either. If strictly confined and temporarily implemented, they could strike a balance at responding to an emergency, but only to the extent necessary to combat the potential evil.

War must be fought with unflinching determination. But it must also be tempered by the norms of military decorum. These norms have been established by customary international law. But they were first established by natural law, that law that is written on our hearts.

Let us approach the terrorist networks as enemies and defeat them on the field of battle. But let us not engage in activities that are viewed as illicit by nations that share our values.

For these are the values that Al-Qaeda seeks to vanquish. And by use of torture, this evil goal will be accomplished through self-destruction.

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James L. Hirsen, J.D., Ph.D.

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