Friday, March 25, 2011

Regarding Pimps and Waterboarding

One has to give Alan Dershowitz credit for testicular fortitude, since I very much doubt his advocacy of torture warrants earned him many friends in academia. Furthermore, I found his framing of the argument for the effective legalization of torture to be somewhat novel; Dershowitz does not seek to defend torture on moral grounds, but rather argues that since its use is inevitable in certain cases, institutionalizing the practice will subject it to greater scrutiny and thereby limit the amount and severity of torture that would otherwise occur "under the radar". If you truly oppose torture, in this view, the best course of action is to bring it into the light of day, even if that means partially legitimizing it.

My astonishment at Dershowitz's sheer (if fairly well-reasoned) audacity diminished somewhat when I realized that the logical structure of his argument for legalized torture was much the same as the standard argument for legalized prostitution: in essence, "This is not going away, no matter how unpleasant it is, so we may as well make it legal in order to ensure transparency and prevent the worst abuses." Just as anti-prostitution laws have failed to eliminate the demand for commercial sex, anti-torture laws and treaties have failed to prevent governments from engaging in torture when they have found it advantageous. In Dershowitz's view, the sub rosa nature of torture leads to greater abuse, just as, in the view of proponents of legalized prostitution, the underground nature of the sex business aggravates its worst aspects (trafficking and abuse of women, spread of disease, etc.).

I would not favor Dershowitz's institutionalized torture for the same reason that I do not favor legalized prostitution: even if bringing the practice into official scrutiny would decrease its use (a contention of which I am dubious), there are some practices which are degrading and unworthy of a civilized society, and should not be condoned. No doubt in Dershowitz's view I thereby shut my eyes to the reality of torture, but I fully recognize that certain moral principles (such as an aversion to torture and the duty to defend the lives of innocents) may sometimes be mutually exclusive. I simply believe that leaving the resolution of such situations up to the consciences of the individuals involved is preferable to institutionalizing any recognition of a barbaric practice such as torture. 

Nor do I share Dershowitz's fetish for transparency; if the Wikileaks imbroglio has shown anything, it's that unbounded scrutiny of government action does not do unbounded good. Government should be held accountable, but that accountability must be balanced against the need of the agents of the state to navigate moral dilemmas in the service of the national interest. I have little doubt that the exigencies of extreme cases will always lead the state to do whatever it deems necessary; better to operate with that understanding than to legally debase our traditional aversion to torture; it reamains as a check on those who are tempted to stretch the boundaries of "necessity". 

Dershowitz refers to this view as "the way of hypocrites". So be it. There are worse things than hypocrisy, and it is preferable to sometimes fail to live up to our standards than to abandon them in the name of accountability.


  1. I have to agree with Alan Dershowitz and this goes with both tortured in integration and prostitution. First let me deal with prostitution:

    Here is an exert from Wikipedia on prostitution in the Netherlands -

    "During the second half of the twentieth century, prostitution and brothels were condoned and tolerated by many local governments. The police only interfered when public order was at stake or in cases of human trafficking. The reasoning behind this gedoogbeleid (policy of tolerance) was harm reduction, and the belief that the enforcement of the anti-prostitution laws would be counterproductive, and that the best way to protect the women was to tolerate prostitution. This genuine Dutch policy of tolerating formally illegal activities for harm reduction purposes has been and still is also applied towards illegal drugs in the Netherlands"

    So now prostitution in the Netherlands, women are much more protected from human trafficking, abuse of prostitutes, drug addiction and helps give them the safe environment that men and women can enjoy the safest sex industry jobs in the world.
    This year also the Dutch have even set up a system where the estimated $100 million dollar sex industry in Amsterdam alone can now be taxed to pay for whatever negative externalities might occur due to legalization.
    I will defend this in Class with further detail.

    Now I must quickly defend torture, though it is morally impermissible, it seems to be too deeply part of our human nature and intelligence gathering strategy to deny its existence. We need transparency along the same lines that the police have for interrogations and in the cop car cameras. The next step is to set up a national policy on what torture is legal and what is still cruel and unusual, but there is a big difference between water boarding (simulated drowning) and mock execution are both much worse than I would argue a beating or lashing might be more acceptable. Finally, the mention of a torture major and new techniques might actually help to produce effective and actually useful interrogation techniques, technology and it would help bring the ethical debate to academics, so we could discuss this in the public. Then when army reservists start torturing innocent human beings, they might think there are limits to what they can inflict upon another, even if it is there mortal enemy.

    Really this is like a full post, sorry for its length.

  2. Patrick, this is an excellent critique of Dershowitz's argument. The rhetoric of "inevitability" is so often employed and so rarely questioned. To add, one of the issues I had with Dershowitz' push for torture warrants is on a practical nature. Let's assume we're in the imaginary ticking time bomb scenario. To be effective, the torture warrant would have to obtained so quickly that it calls into question the thoroughness of the entire process of consideration. It seems way too easy for the system to be abused and for urgent requests to be expedited based on "necessity." In that case, is greater accountability or reliability really achieved through torture warrants?

  3. Jon, I'm afraid I agree with Patrick on this one. To allow torture under certain circumstances (and I'm reducing Dershowitz's argument down quite a bit here) because "it is not going away, no matter how unpleasant it is" is ridiculous and frankly, lazy. Sure, torture proves to be effective in certain situations, but to violate the most basic forms of human rights--to deny a human the right to be treated like a human--is wrong. Just because something in society is present and seemingly permanent, doesn't mean it's unchangeable. Simply put, there is never good enough reason to torture. And again, who is to decide what legal versus illegal torture is? Is there really a measurable scale of the intensity of torture? I personally think not.


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