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Is Alan Dershowitz Correct About "Sticking Needles Under Terrorists' Fingernails?"


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I've always assumed that the "correct" stance about torture is, "Make it illegal under all circumstances, and if you do it, be prepared to pay the price if you're caught."

Alan Dershowitz once said:

Jan 22, 2002: "Want to Torture? Get a Warrant" by Alan M Dershowitz on sfgate.com

In this editorial, Dershowitz advocates torture using clean needles shoved under people's fingernails to produce excruciating pain in a "ticking-time bomb scenario," which everyone dismissed as being nearly impossible.

Well ...

"NYC Bombing Suspect Nabbed, Charged in Shootout with Cops" by Andrew Wyrich, Tariq Zehwei, and John Bacon on usatoday.com

This is pretty damned close to being a ticking-time bomb scenario.

So, is Dershowitz right, or not?

Should we be able to torture this man to extract information? Or do we treat him humanely?

Do we make it absolutely illegal to torture people?

If so, do we assign a scapegoat from the CIA to "break the law" by doing it illegally?

Or do we come right out and say, "You won't be killed, but you're going to experience pain like you never thought was possible?"

What if they we don't torture this man, and a bomb goes off in Times Square in two days, killing 200 people, all because we didn't have proper intelligence that we could have otherwise extracted?

See how I used "they" in the preceding paragraph before I caught myself? It isn't they; it's "we."

It's so easy to take a holier-than-thou stance regarding torture; it's a lot tougher when reality stares you in the face.

I don't think there's a right or wrong answer here, but the moral implications are tremendous.

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7 minutes ago, The Hersch said:

Do we make it absolutely illegal to torture people?

We've already done that, in international and U.S. law. The laws allow for no exceptions, ever.

Understood, but everything in the world is as it is.

Something tells me the NYC bomber hasn't been staying in the Ritz-Carlton. :mellow:

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I assume there are plenty of Americans getting tortured by other countries, but I agree, with the sentiment expressed earlier that pointed out that John McCain, is strictly against torture.  I think we torture people illegally and I don't agree with that.  I thought it was a good point, that a person well versed in security risks, but who also was tortured is against it for all occasions.  I didn't think that point was expressed to stop others who have not been tortured from having an opinion, but was very valid.  I just don't think it is right to torture anyone, even in a ticking time bomb situation.  While there may be serious ramifications for others, in the days we are living in hopefully we have enough intelligence to be able to gather information by other means.  The person who bombed NYC was a US Citizen and should be afforded the full benefit of our constitution.  I think foreigners should be afforded all our laws and should not be tortured.  While it may be a gruesome world out there, do we want to add to it?  

I was reading an article about why millennials aren't having as many children- many of them perceive the world is going to hell in a handbasket.  Allowing torture, isn't that just another way our country would be adding to that?  You could clearly see lines being broken in terms of personal privacy over the Apple iPhone unlocking debate earlier this year.  Do you trust your government to not bend the rules when it gives them something they want, I don't.  They publicized that as, we need one terrorists phone unlocked... oh and don't worry about those 11 others we needed.  This could be, we are going to torture one terrorist... oh and don't worry about that civil rights advocate over here being tortured.  

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28 minutes ago, DonRocks said:

Understood, but everything in the world is as it is.

Something tells me the NYC bomber hasn't been staying in the Ritz-Carlton. :mellow:

Leaving aside the legal and moral aspects (which are of overwhelming force), by most accounts torture is reliably useful for one thing only: obtaining confessions, whether true or false.

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19 minutes ago, The Hersch said:

Leaving aside the legal and moral aspects (which are of overwhelming force), by most accounts torture is reliably useful for one thing only: obtaining confessions, whether true or false.

I strongly suspect that people use torture to get information; not just confessions. Whether or not it's "useful" for that purpose, I don't know - I've read things that say "You'll tell them anything," and I've read other things that say "You'll tell them what you think they want to hear." 

If a prisoner is in extended captivity, I suspect the consequences of telling information that turns out to be false could be dire.

Many people would consider this to be a separate issue from the ethics and morality behind it all.

Please note that I have not expressed an opinion on this subject, and most certainly have not condoned it.

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1 minute ago, DonRocks said:

If a prisoner is in extended captivity, I suspect the consequences of telling information that turns out to be false could be dire.

Why?  Killing them might be less painful than torture and they may not care at that point.  They know they are likely not getting released, so there is no benefit for true information.  Even if they help someone, if they are at the point they are getting tortured they aren't getting the benefit of a plea deal and etc, they are outside our legal system at that point.  What punishment is there for false information that they aren't already getting?  

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7 minutes ago, ktmoomau said:

What punishment is there for false information that they aren't already getting?  

More severe torture.

Hey, I'm not saying I enjoy this conversation, but it's happening throughout the world, so I prefer to address it rather than pretend it doesn't exist.

There is something resembling a ticking-time-bomb scenario going on *right now* with the New York bomber, and our country doesn't exactly have a stellar track record in dealing with this ugly subject.

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5 minutes ago, DonRocks said:

More severe torture.

If the information is true, why wouldn't they continue to get tortured for more information?  If they don't have more information, why not torture you more severely just to make sure? What do you think they likely do to people they have tortured?  Let them go and run to tell people about being tortured with fresh marks and bruises...  I likely think the step past getting the information is worse whether it's true or false, so why bother giving true information?  If you are being tortured they don't want to hire you as a double agent, they aren't going to just want you to run back into the world, and any true information given means you likely would be killed by someone else upon release.  I really see absolutely no benefit in giving real versus false information at that point.  

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6 minutes ago, ktmoomau said:

If the information is true, why wouldn't they continue to get tortured for more information?  If they don't have more information, why not torture you more severely just to make sure? What do you think they likely do to people they have tortured?  Let them go and run to tell people about being tortured with fresh marks and bruises...  I likely think the step past getting the information is worse whether it's true or false, so why bother giving true information?  If you are being tortured they don't want to hire you as a double agent, they aren't going to just want you to run back into the world, and any true information given means you likely would be killed by someone else upon release.  I really see absolutely no benefit in giving real versus false information at that point.

Maybe you're right, but for something that doesn't work, it sure has been practiced a lot by humanity over the centuries.

I also think that one reason it's perpetuated is that everybody is uncomfortable talking about it, so it continues behind closed doors.

People who feel strongly about the issue should consider supporting Amnesty International.

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6 hours ago, DonRocks said:

Maybe you're right, but for something that doesn't work, it sure has been practiced a lot by humanity over the centuries.

Well, so has stoning to death rape victims, and rain dances, and human sacrifices to appease the gods, and killing rare and majestic creatures to increase virility.  

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I reread this thread, and gave another quick read to Dershowitz's article, and nobody really addressed the specifics of why Dershowitz is wrong, except in the most general of terms. The fact that "It's against the law" is certainly important, but as Charles Dickens once wrote, "... the law is an ass." Slavery used to be legal, and gay marriage used to be illegal - those are the only two examples you should need in order to demonstrate that - if something is legal, or illegal - it isn't necessarily right, or wrong.

From the way I read his proposal, Dershowitz is thinking too much like a U.S. Supreme Court Justice. Even though he doesn't come right out and say it, he seems to be arguing that torture should be treated like any other violation of life, liberty, or property - in other words, he's trying to allow torture by focusing on the "Due Process Clauses" in the 5th and 14th Amendments.

The term "due process" is treated equally in both Amendments. As Supreme Court Justice Felix Frankenfurter wrote, in a majority opinion, "To suppose that due process of law meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection."

Because of this, I wonder if Dershowitz is proposing that torture should be allowed at the state level (14th Amendment) as well as at the national level (5th Amendment). Moral issues aside, do you see how his proposal quickly becomes sticky even on a purely logistical basis? 

Furthermore, he declares that in a "ticking bomb scenario," 1) torture *will* happen, and 2) "the vast majority" of Americans would want it to happen (read the first and second paragraphs in his essay).

What he does not specify is whether his proposal applies only to American treatment of American citizens, or if his proposal extends beyond international borders. 

If the latter, no matter what this country decided, we aren't permitted to go against Common Article 3 (common to all four Geneva Conventions) which states that:

"Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

* violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture."

If laws are "bad" in some way, they can be changed (see my first paragraph), at least within the United States; but good luck changing *that* law - the day that Common Article 3 is rescinded, I'm off to Mars.

The biggest irony of all is that Dershowitz says, and I quote, "Every democracy, including our own, has employed torture outside of the law." But he conveniently neglects to say what would prevent them from breaking this one. Is "The Dershowitz Proposal" so all-powerful that every country, including the U.S., would honor it? To borrow a phrase from Justice Frankenfurter: To suppose that is too frivolous to require elaborate rejection.

I refer readers back to my first sentence in my first post of this thread.

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To your first sentence, "I've always assumed that the "correct" stance about torture is, "Make it illegal under all circumstances, and if you do it, be prepared to pay the price if you're caught." I would tend to agree.  

An essay against torture in all cases can be found here.  This also examines the assumptions behind a ticking time bomb scenario.

Another interesting article locally about the interrogation of German POW's at Fort Hunt can be found here.  Many of the old timers did not approve of today's "enhanced interrogation techniques."

To your first question:  "So, is Dershowitz right, or not?"  I would tend to say no, because he starts with the assumption that since this is wrong, but someone will do it anyway, we need to find a legal means to do it.  Society can choose to make anything legal. The Constitution once allowed legal slavery.  That did not make it moral.  See also, Germany, Third Reich.  Everything there was completely legal under German law.

To make such an exceptional choice, the action must be effective.  The Hersch said it best upthread:

On 9/20/2016 at 0:18 PM, The Hersch said:

Leaving aside the legal and moral aspects (which are of overwhelming force), by most accounts torture is reliably useful for one thing only: obtaining confessions, whether true or false.

Torture is designed to give the torturer what the torturer wants.  In that way, it's similar to the corrosive relationship between slave and master, in that this act affects the torturer as well as the tortured.  From Thomas Jefferson:

The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other.  Our children see this, and learn to imitate it; for man is an imitative animal.  This quality is the germ of all education in him.  From his cradle to his grave he is learning to do what he sees others do.  If a parent could find no motive either in his philanthropy or his self-love, for restraining the intemperance of passion towards his slave, it should always be a sufficient one that his child is present.  But generally it is not sufficient.  The parent storms, the child looks on, catches the lineaments of wrath, puts on the same airs in the circle of smaller slaves, gives a loose to his worst of passions, and thus nursed, educated, and daily exercised in tyranny, cannot but be stamped by it with odious peculiarities.  The man must be a prodigy who can retain his manners and morals undepraved by such circumstances.

Sometimes the morals and principles are not just to protect the victims, but to protect the would-be perpetrators and society at large.

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On 9/19/2016 at 9:44 PM, DonRocks said:

Alan Dershowitz once said:

Jan 22, 2002: "Want to Torture? Get a Warrant" by Alan M Dershowitz on sfgate.com

In this editorial, Dershowitz advocates torture using clean needles shoved under people's fingernails to produce excruciating pain in a "ticking-time bomb scenario," which everyone dismissed as being nearly impossible.

Well ...

"NYC Bombing Suspect Nailed, Charged in Shootout with Cops" by Andrew Wyrich, Tariq Zehwei, and John Bacon on usatoday.com

This is pretty damned close to being a ticking-time bomb scenario.

So, is Dershowitz right, or not?

"I am a liberal Democrat in politics, but a neutral civil libertarian when it comes to the Constitution." - Alan Dershowitz

"Maxine Waters Does Not Speak for Democrats or Liberals" by Alan Dershowitz on thehill.com

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9 minutes ago, DonRocks said:

"I am a liberal Democrat in politics, but a neutral civil libertarian when it comes to the Constitution." - Alan Dershowitz

"Maxine Waters Does Not Speak for Democrats or Liberals" by Alan Dershowitz on thehill.com

Poor 'ol Alan should know that if you plant ice, you're going to harvest wind.  Sometimes being textbook correct is just not enough.

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41 minutes ago, dcs said:

Poor 'ol Alan should know that if you plant ice, you're going to harvest wind.  Sometimes being textbook correct is just not enough.

It's almost incredible that I can't find this on the internet, but I'm almost certain that Alan Dershowitz's defense for the Mike Tyson case was something like, 'Desiree Washington should have known better than to go up to his hotel room.'

Without commenting about the actual events (which I don't know about), or any of the people involved ... that argument always struck me as one of the most terrible defenses I've ever heard, and I could swear that it was Alan Dershowitz's concoction.

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