Warrants for Torture

This is a bit of a followup to my last post. I really have wanted to do a more in-depth post of the kind I used to do, but I can't easily find the time for it anymore.

Shortly after 9/11, the reknowned human rights lawyer Alan Dershowitz began talking about "torture warrants." Many people thought that his thoughts on this matter meant that he was advocating torture, but he was always clear to point out that he did not. His remarks were very controversial, and I was almost offended when I saw him speaking in a similar way to that editorial on CBC Newsworld one night. But the events of the last few years have led me to believe there was a much greater wisdom to his proposition than I originally believed.

Dershowitz has argued that in "ticking time bomb" scenarios, law enforcement officials will torture - they just will, whether we like it or not - if many lives can be saved. As we've seen in the last few years, torture seems to be inevitable in the pressure cooker environment, even if lives are not immediately at stake. There've been the official interrogation techniques used by intelligence agencies, such as the simulated drowning effect caused by water-boarding. Then there are the "grey areas" - things like "rendition" where nobody publicly admits a detainee is being deported in order to be tortured in a jurisdiction that allows it, but where that is the tacit benefit. And then, of course, are the total system breakdowns, things like Abu Ghraib. In such cases, torture is the result of a "Lord of the Flies" breakdown of social order among troops, more than an official operation designed to accomplish specific goals.

Here, the Dershowitz argument begins to derive more force. What if torture was a part of the law agency toolkit, but only via a court ordered warrant? If it were operated out in the open and not concealed grey areas that are out of sight, public officials would then be subject to the normal public pressures of democracy. The actions could have consquences in terms of re-election hopes, etc.

I am opposed enough to torture that I could not support such a measure, not yet, at any rate. But at least I understand a lot better what it was Mr. Dershowitz was talking about. Contrary to the popular saying, democracy always does its best when it airs its laundry in public.