Download Download PDF. Translate PDF. Jeremy Wisnewski I. As Dershowitz has repeatedly claimed, in print and in interviews, torture is morally repugnant. Dershowitz claims that, given the inevitability of torture, as a democracy we simply must provide some judicial oversight of this practice.
TR, The dichotomy is a false one. But the issue is not simply a decision between accountability and its absence. The Dershowitz proposal has been subjected to a number of criticisms, most of which are quite perceptive. The Diminished Harm Argument Dershowitz claims that torture warrants might actually decrease the number of torture cases that occur. In this section, I intend to demonstrate three ways that warrants might have no efficacy in diminishing the harm inflicted by torture by reducing its occurrence.
I will then suggest why torture warrants might actually increase the amount of torture currently prac- ticed in the world. Unfortunately, there are not sufficient data for either Dershowitz or myself to establish such empirical assertions in any conclusive way. My aim is thus to show that we must remain agnostic about the effectiveness of warrants—that we have as much reason to suspect that warrants will increase torture as we do to think they will decrease it.
A Logical Argument against Efficacy The creation of a process of judicial review along Dershowitzian lines would legalize certain instances of torture namely, those that were conducted after a warrant for said torture was acquired. This demonstrates a disregard for the commitment to law, as well as a disregard for the seriousness of torture. Establishing a level of judiciary review could not possibly fix this problem—and it is this a failure to respect the law in regard to torture that is arguably the source of our current predicament.
Making some instances of torture legal will not get people to respect the law regarding torture any more than an outright legalization of all torture would. Thus, it seems strange to claim that judiciary review would decrease the occurrence of torture. Jeremy Wisnewski may well have no effect at all, given that telling people that all torture is morally abhorrent and illegal does not prevent torture.
Establishing a review process will not get those who currently do not respect the rule of law to miraculously begin respecting the law. It thus seems, on my view, that torture warrants will have little effect—with the exception that some torture might occur with even more impunity. In defense of the view that torture warrants would facilitate the decrease in instances of torture, Dershowitz has presented the following examples: 1.
Alleged wiretaps of Martin Luther King, Jr. In this case, no warrant was sought, because it was believed that one would not have been granted. If the torture case is like these, Dershowitz contends, requiring warrants will prevent instances of torture, much as requiring warrants now for wiretaps argu- ably has the effect of limiting the number of wiretaps used.
Let us ignore the questionable view that fewer wiretaps are currently used. Even if what Dershowitz says about these cases is accurate, these cases cannot be said to be analogous to the case of torture. When wiretaps did not require a warrant, there was not a disincentive to use them it was not illegal to use them. In the case of torture, however, there is a current disincentive namely, torture is illegal, against the sworn policy of the United States, a signatory of the Inter- national Convention against Torture.
Changing the law, in the case of warrants, actually creates a disincentive where none existed using wiretaps becomes illegal. Torture warrants, however, would not create a disincentive torture is already illegal. The most it would do would be to encourage people to acquire warrants when they had a reasonable chance of doing so. If they failed to get a warrant, or thought that they would not get said warrant, there would be no additional disincentive for refraining from torture.
With or without a warrant, torture in such a case is illegal. This, I think, is sufficient to show that Der- showitz cannot rely on these particular examples to demonstrate that torture warrants would have an impact on the number of occurrences of torture in any country that instituted a policy requiring such warrants. Unwarranted Torture Warrants To call this a response is actually rather generous. Dershowitz is indeed acknowledging the issue—but he offers no additional argument against the objec- tion just raised.
Rather, he seems here to simply reassert his view. Torturers could simply claim that the judiciary review overlooked their case, or that there was not adequate time to seek judiciary approval. It is in the nature of excuses that they are infinitely adaptable.
No warrant process will make this less so. An Historical Argument against Efficacy In Why Terrorism Works, Dershowitz claims that evidence for his view about the efficacy regarding torture warrants can be culled from the pages of history.
The practice of European courts in the sixteenth century, where torture warrants were commonly issued in order to acquire a confession from a suspect, does indeed present an example of the use of something akin to torture warrants—but this example hardly demonstrates what Dershowitz thinks it does.
Dershowitz thinks that this historical precedent constitutes evidence for his case that torture warrants can be an effective means of limiting the occurrences of torture, and that it can be appropriately used as a means to save lives.
Dershowitz, it should be noted, is simply mistaken here. Torture was never a part of English judicial proceedings. Judges could not issue torture warrants. The Privy Council could issue such warrants, for a brief period, but this never became part of standard judicial procedure.
Moreover, the extra-legality of torture during this period was attested to by the best legal minds of the day. But Dershowitz might have appealed to the situation in continental Europe to provide historical examples of the use of torture warrants. In European courts in this period, a series of restrictions developed around the use of torture to obtain evidence. Jeremy Wisnewski there was either one eye-witness or substantial circumstantial evidence establish- ing the probable guilt of the person to be tortured—and then only if the courts agreed that the evidence warranted proceeding with the torture in effect, issuing a torture warrant.
Moreover, questioning under duress could not be leading. The suspect needed to provide information that could be corroborated by the courts such as the location of a murder victim, or a weapon, or of stolen goods.
The confessions procured through torture were, then as now, inadmissible in courts. Thus, confession had to be repeated in the court when no torture was taking place.
As Dershowitz admits: it is always difficult to extrapolate from history, but it seems logical that a formal, visible, accountable, and centralized system is somewhat easier to control than an ad hoc, off the books, under-the-radar-screen nonsystem. I believe, though I certainly cannot prove, that a formal requirement of a judicial warrant as a pre-requisite to nonlethal torture would decrease the amount of physical violence directed against suspects.
As I argued previously, for those who act regardless of the law, warrants will likely make no difference whatsoever to their conduct. A failure to get a warrant will not necessarily translate into refraining from torture. Nevertheless, it might well be the case that a judicial procedure would limit the number of others who might engage in the practice.
Though, again, the opposite argument seems just as plausible: those who refused to torture based on its illegality might now pursue torture as a means of interrogation in cases where they would not have done so before. Does the European case give us reason to think one thing rather than another? Langbein, however, does not agree. As Langbein points out: The European law of torture was suffused with the spirit of safeguard, yet it was never able to correct for the fundamental unreliability of coerced evidence.
I see little reason to think that modern circumstances would make investigation under torture more reliable. The document also addressed other forms of 'cruel and inhumane treatment'. The definition of torture specifically excludes actions involved in lawful sanctions presumably such as the death penalty , but also perhaps the 'accidental injury' of a suspect during the actions leading up to his arrest. Both subjective and objective elements are thus included, as well as factors such as coercion and punishment Wattad M.
While there are those who suggest that the United Nations' definition of torture may be limited in scope, and insufficiently defined, it can be used for the purposes of the discussion herein. Dershowitz states that his teaching experience in Israel had a significant impact upon his views on torture, as this topic was of considerable importance at the time, and remains so to the present day. Dershowitz comments that, even in the United States, the use of non-lethal torture is presently in use in order to obtain critical information needed to prevent terrorism.
While torture is on-going, it is clandestine and neither commonly known, nor politically or commonly accepted; indeed, such acts are performed in a manner that provides deniability as necessary, and avoids accountability from a political perspective. Dershowitz himself deplores torture, and speaks of the ideal alternative where torture would not be used. He repeatedly frames alternatives to torture, even going so far as to suggest that when faced with the 'ticking time-bomb' dilemma, one might simply choose to turn away, rather than breach a moral imperative.
In his essay, Dershowitz presents the perspectives of present-day as well as those of less modern philosophers , including both Jeremy Bentham and Voltaire. Indeed, Dershowitz offers a fifth road approach to the topic of torture, which consists of simply not even addressing the matter, and turning away from such a controversial and confusing ideation.
However, he immediately counters this, saying it is far better to openly discuss torture, and the full gamut of its moral complexity, than to become the proverbial ostrich, hiding our heads in the sand and pretending that danger doesn't actually exist.
Torture without accountability is unacceptable according to Dershowitz, who feels that it also encourages moral hypocrisy and dishonest posturing. Dershowitz proposes that the best alternative that enables the United States to simultaneously protect the populace and act strongly as needed, yet retain at least the crumbs of moral superiority, would be to move towards judicial authorization of torture.
With this controversial proposal, he is of the opinion that at the least, making torture become judicially sponsored, would have the net result of actual moral honesty instead of hypocritical pretense. Given the present state of affairs politically, and the fact that terrorism has, if anything, become more present globally, Dershowitz' thoughts on the topic are very interesting.
Implicit in Dershowitz' work are questions of individual personal stance, as well as the collective societal stance, on the moral grounds of torture, and a direct impetus Indeed, this precise question is posed by Dershowitz himself in his classes as the classic railroad conundrum.
The willingness to permit torture in the TTB scenario is sometimes cited as vindication of broadly consequentialist views Alhoff If the permissibility of torture is mostly motivated by the acceptability of sacrificing one individual in order to save the lives of many, these factors should not matter, or at the very least matter very little. Instead, these results suggest that torture is endorsed under these circumstances as a form of retributive action, and not simply as a means of information extraction.
But our results show that people sometimes vary significantly in their endorsement of torture due to differences in their prior moral commitments. Utilitarians were more likely to reason this way than deontologists, indicating that the use of utilitarian frameworks in TTB scenarios are particularly persuasive to people of this kind of philosophical orientation Experiment 2.
Compared to utilitarians, deontologists found torture to be less accept- able, more wrong, and less obligatory. Ticking Time Bomb and Moral Judgment 5. Carlsmith and colleagues have argued that people often cite utilitarian justifications for imposing penalties, but their behavior is actually guided by retributive principles Carlsmith ; Carlsmith et al. But these factors are irrelevant to utilitarian concerns in TTB scenarios, where only the question of saving current lives by incurring current torment on an individual matters.
Our results indicate that a desire for retribution may constitute a hidden motivation for endorsing the use of torture in scenarios.
Given the gross violations in utilitarian structure that resulted from our manipulations, we would expect the impact of these manipulations to be greater than what we observed. Moreover, this was true regardless of whether the decision-maker leaned more toward utilitarian or deontological moral commitments. Real life scenarios often depart significantly from the idealized TTB scenarios cited to justify torture.
Torture has long been known to be an unreliable method Rejali , pp. The practice of depicting torture as otherwise in a scenario whose results are sometimes used to justify real like instances of torture is highly suspect. Additionally, our results and those of Carlsmith and colleagues indicate that at least some of the motivation for finding torture permissible has nothing to do with making a difficult utilitarian judg- ment of sacrificing the one for the benefit of the many.
Subsequent research would need to investigate further how it is certain features of TTB scenarios interact with things like empathic concern and personal distress in order to get a clearer picture of how moral reasoning functions in TTB scenarios. Cummins normally deontological judgments that are associated with emotional responses e.
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