On the Ethics of Torture

4 Against the Institutionalization of Torture

4 Against the Institutionalization of Torture Even if torture can be morally justified, this does not mean that it may or should also be institutionalized, as already pointed out. Indeed, I think it definitely should not be. However, some think that legalizing and institutionalizing torture would be a very good idea. In particular, the lawyer Alan Dershowitz has made the infamous suggestion to introduce legal “torture warrants,” issued by judges. [I]t is important to ask the following question: if torture is being or will be practiced, is it worse to close our eyes to it and tolerate its use by low-level law enforcement officials without accountability, or instead to bring it to the surface by requiring that a warrant of some kind be required as a precondition to the infliction of any type of torture under any circumstances?1 And he states: My own belief is that a warrant requirement, if properly enforced, would probably reduce the frequency, severity, and duration of torture. I cannot see how it could possibly increase it, since a warrant requirement simply imposes an additional level of prior review. . . . [H]ere are two examples to demonstrate why I think there would be less torture with a warrant requirement than without one. Recall the case of the alleged national security wiretap being placed on the phones of Martin Luther King by the Kennedy administration in the early 1960s. This was in the days when the attorney general could authorize a national security wiretap without a warrant. Today no judge would issue a warrant in a case as flimsy as that one. When Zaccarias Moussaui was detained after trying to learn how to fly an airplane, without wanting to know much about landing it, the government did not even seek a national 61 62 On the Ethics of Torture security wiretap because its lawyers believed that a judge would not have granted one.2 A few things must be said concerning this argument. First, closing one’s eyes to the practice of torture is not the only alternative to the introduction of torture warrants. Unfortunately, Dershowitz seems to have difficulties grasping the difference between closing one’s eyes to torture and exposing and condemning it. To wit, he criticizes William Schulz, the executive director of Amnesty International U.S.A., who asks whether Dershowitz would also favor brutality warrants and prisoner rape warrants. (Dershowitz answers with a “heuristic yes,” whatever that is supposed to mean.)3 And he quotes himself from an earlier text saying: “My question back to Schulz is do you prefer the current situation in which brutality, testilying and prisoner rape are rampant, but we close our eyes to these evils?”4 Who is “we”? Certainly not Schulz or Amnesty International.5 Second, Dershowitz admits that he “certainly cannot prove . . . that a formal requirement of a judicial warrant as prerequisite to nonlethal torture would decrease the amount of physical violence directed against suspects.”6 It seems, however, that Dershowitz should offer something more than his personal “belief” and two examples to back the quite grave proposal to institutionalize torture. That he does not do so displays a flippancy about the matter that is out of place. To be sure, he also adduces John H. Langbein’s historical study of torture,7 and although he concedes that it “does not definitely answer” “whether there would be less torture if it were done as part of the legal system ,” he thinks that it “does provide some suggestive insights.”8 However, before drawing “suggestive insights” from Langbein’s study and from history, one should get both straight. Dershowitz does not.9 In fact, Langbein leaves no doubt that torture was not part of the judicial system in England. Not only “law enforcement officers” but also the courts (and judges) could not warrant torture. Langbein even states: The legal basis, such as it was, for the use of torture in the eightyone known cases appears to have been the notion of sovereign immunity, a defensive doctrine that spared the authorities from having to supply justification for what they were doing.10 The facts, then, are that torture was never part of the English judicial system (if it was ever legal in England at all), whereas it was part of the Continental legal system. Extensive (not to say epidemic) use was made of torture on the Continent but not in England. Obviously, these facts suggest insights quite different from those Dershowitz comes up with. [3.145.12...