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Alain Dershowitz’s torturous Unspeak

Alan Dershowitz, the celebrated American lawyer and apologist for torture, has made another apology for torture. As apologists for torture go, Dershowitz is on the subtle side. He likes to pretend that he doesn’t support torture, while concocting arguments in favour of it, and, if it suits his purposes, ignoring the law to boot. (On which I wrote this post at CT last year.) Anyway, in his latest apology for torture, Dershowitz writes:

Although I am personally opposed to the use of torture, I have no doubt that any president–indeed any leader of a democratic nation–would in fact authorize some forms of torture against a captured terrorist if he believed that this was the only way of securing information necessary to prevent an imminent mass casualty attack. The only dispute is whether he would do so openly with accountability or secretly with deniability. The former seems more consistent with democratic theory, the latter with typical political hypocrisy.

I submit that there is already something deeply wrong with the fourth word of this extract, where Dershowitz claims that he is personally against torture. The word “personally” is not required to convey Dersowitz’s sense – “I am opposed to the use of torture” would be perfectly clear. Well, perhaps it would be too clear. So it is as well to add “personally”, thus diluting the statement beyond repair.

“Personally” is exquisite Unspeak: it enacts a sort of intimacy with the reader, inviting a rapport with the writer’s innermost emotions, while at the same time catastrophically weakening the statement of which it is a part, for the argument has now been stealthily downgraded – from one of moral principles to one of “personal” feelings. One could be personally in favour of torture, and that would be just fine too. One’s opinions on torture, your and my opinions as well as Dershowitz’s, are merely personal, on the order of idiosyncratic preferences.

Dershowitz’s language could also be read as taking an even more minimalist position: although he would not like to torture anyone himself, he doesn’t mind at all if anyone else does it. Personally I do not like eating Brussels sprouts, but I’d have to be crazy to try to prevent anyone else from doing so.

Let us translate Dershowitz’s argument to a different context. What if someone were to write: “Although I am personally opposed to murdering children, I have no doubt that people will continue to murder children”, and then to go on to suggest that in some special situations an individual ought to be granted a child-killing warrant, so as to reduce society’s pain in seeing illegal things done?

So goes Dershowitz, pretending glibly that he is not in favour of torture, when everything he writes about the subject without exception represents a plea for torture to be made legal. Personally, I consider him a disgrace to his profession and to the university of Harvard.

In the mean time, counter-terrorism veteran Malcolm Nance has a brilliant post here on why forced partial drowning, or “waterboarding”, is torture.

  1. 1  Larsaan  November 11, 2007, 2:35 am 

    I also can’t help but notice how he shuts off any objections by saying that the only debate is how openly torture is used.

  2. 2  Alex Higgins  November 11, 2007, 12:00 pm 

    Jim Henley at Reason Magazine created his own alternative to the ticking bomb scenario:

    “Let’s say you’ve caught a suspect and you’re sure he’s a terrorist, and you’re sure there’s a nuclear bomb somewhere in Manhattan, and you’re sure he knows where it is, and you’re sure this particular terrorist has been trained to resist torture just long enough that you could never get the true location of the bomb out of him in time.

    ‘But you’re also sure this particular terrorist is a pervert! And he tells you that if you’ll rape your own child in front of him, he’ll tell you exactly where the bomb is and how to disarm it.

    ‘And you’re sure that he will, because your intelligence is that good in exactly that way.” [LOL! If you’ll pardon the expression]

    ‘Wow! Fascinating hypothetical, huh? And it’s only slightly more far-fetched than the more familiar ticking time bomb scenario, in which you must torture the suspect to save all those innocent people. Both versions have to be laid out awfully precisely. In my scenario, I even assume the nuclear terrorist has been trained to resist torture for a time. Improbably, Alan Dershowitz—the torture enthusiast and original time bomb booster—does not.”

    It’s an excellent argument for the lagalisation of infant rape by the CIA and the FBI, albeit only in very extreme circumstances, and with a court order. But why is this scenario not widely used by advocates of big, torturing government?

    “The answer is simple: State agents don’t have any ambition to rape their own children.”


    “You could construct 100 hypotheticals involving utilitarian tradeoffs and terrorism, none less plausible or implausible than the first. What if the suspect demands you fix the World Series and this was your team’s best chance at a championship in 50 years? What if he says he’ll tell you where the bomb is if someone will explain the proof of Fermat’s Last Theorem, in words he can understand? What if he’ll make sure the bomb doesn’t go off in exchange for a ride on the space shuttle? Hey—it could happen.”

    What if there’s a huge bomb somewhere in the centre of London and the police have brilliantly managed to track down a guy they are absolutely sure is responsible for this attack that they absolutely know is going to happen, even though this has never happened before. And the guy they caught will only tell them where the bomb is if Alan Dershowtiz swears never to use the ticking-bomb scenario as an argument again?

    What would he do? Would he be able to stop?

    I reckon a lot of people would die that day.

    “Here’s another poser: Suppose you’re an innocent suspect whom your captors are convinced is a terrorist. They don’t believe your protestations, so they decide to torture you into a confession. The more you protest your innocence, the more frustrated they get that you won’t “crack.” What do you say to get them to stop? How do you get them not to decide they need to hurt you even more?”

    ‘That puzzle has two features that make it unpopular with torture advocates. It asks you to sympathize with the victim rather than the perpetrator. And for too many people, it isn’t a hypothetical at all.”

    Dershowitz, unless this has changed, is a member of Amnesty International. I seriously think Amnesty should consider expelling him, since his principle mission these days is to promote grave human rights abuses.

  3. 3  Alex Higgins  November 11, 2007, 12:13 pm 

    By the way, we can also look forward to Dershowitz’s future articles in which he declares that he is personally opposed to shelling Lebanese villages, blockading the Gaza Strip, shooting up Palestinian water tanks and making false insinuations about the motives of Human Rights Watch.

  4. 4  dsquared  November 11, 2007, 9:06 pm 

    this one is beautiful: “Concerned Citizens“. Meaning, warlords.

  5. 5  Chris Lloyd  November 12, 2007, 8:56 am 

    I disagree that “personally” is unspeak. I am personally against abortions of convenience. But I do not want them to be made illegal because the practical consequences of this are worse. The paragraph you quote seems to be making the same appeal to practicality over principle. You can disagree if you like, but the argument is not relying on any word games by my reading.

    The problem with the extract is not that “personally” is unspeak. The problem is two fold. First, the clause you decry is simply a lie. Dershowitz is personally and consistently all for torture. Second, the practical consequence of making torture legal is that it will being an unraveling of our civic rights.

    For me, legalising torture fails on ground of both principle and practicality.

  6. 6  Ellis  November 12, 2007, 10:59 pm 

    Well, the fly in the ointment is certainly this word “personally”. One the one hand, for some people it adds something of value; for others, it detracts. What gets added by this term? What sort of diminution occurs?

    It seems what happens mostly is that the one who uses it is drawing a line between themselves and what they are talking about. They are saying there are two topics here — what I think, and what’s right or best. This moves the conversation from one of personal opinions to one about abstractions — “Well, I personally think this, but these are its merits and detriments.” The word “personally” makes the topic academic.

    Now the question is whether anything is gained by doing this when the topic involves human life (in whatever context). When life isn’t a factor, this word become at most stuffy: “I personally think this packaging of our product looks better, but most people prefer that other coloring, so we should choose that one.” Yet change the topic to “life” and the connotation of “personally” become diffident, even cold-blooded.

    Scenarios about someone with knowledge of a weapon that could harm many people bring forward the issue of whether one life is equal to the lives of many. It quantizes life. This shift from intrinsic value to quantity somewhat contaminates the debates on abortion, frozen embryos, even disaster triage. It is not infrequently part of the equation of the battlefield.

    So the term “personally” conveys either authority beyond individual opinion or, less commonly, humility. Now which meaning was D’s wanting to express?

    All this stands apart from the question whether torture is effective. It seems all the protestations to the contrary, no one would consider this option if it weren’t believed to work, at least sometimes. As the possibility of suffering and loss rises, one gets tempted to try things even with a low probability of success. Hence, people jump into the ocean to save someone, and sometimes they drown. It seems all the academic conversations about this atom bomb scenario don’t count for much if the real event were actually to occur. Then if someone did some torturing, whether it succeeded or failed, the torturer would be excused, perhaps even celebrated.

    Such are the dilemmas confronting us all in a world where people are willing to die for what they believe (however crazy their belief seems to others).

  7. 7  Steven  November 13, 2007, 12:55 pm 

    I think the problem with such scenarios is not so much that they perform calculations with human lives (in many situations, such as your example of triage, it would be morally irresponsible not to do so), but that they fantasize about situations of perfect information – which is the aspect so nicely satirized in the piece that Alex quoted.

    Meanwhile, Chris:

    I am personally against abortions of convenience.

    Even if you disagree on “personally”, I suspect there’s still some Unspeak left in that sentence.

  8. 8  Guano  November 13, 2007, 3:53 pm 

    Governments are taking decisions in our name. If we say that we are against torture it implies that we will do what we can, as citizens, to prevent our government from allowing torture. It implies that it will affect how we vote or which organisations we give money to or whether or not we write to a newspaper about it. We cannot say that personally we are against torture but remain unconcerned at what a Government does in our name.

  9. 9  ukliberty  November 13, 2007, 7:23 pm 

    Torture is illegal and abhorrent. The linguistic contortions and semantic games played by its supporters are somewhat fascinating.

    It seems there has been a growth in the notion that the Commander-in-Chief can and should be able to do whatever he likes, including torture innocent people, should he believe it necessary – as Steven wrote in his article on the “Unitary Executive“.

    For example, there is John Yoo, who agreed with the proposition that the President may crush a child’s testicles with impunity.

    What is disturbing is that this isn’t seen by pretty much everyone as an eccentric viewpoint – on the contrary, such people are close to the centre of power.

    But can you imagine our response to a brown-skinned, moustachioed foreigner, possibly fond of wearing military uniforms, suddenly declaring that he was above domestic and international law? That he can torture innocent children in order to get information from someone else? Would we think, oh that’s fine, after all he does have the opinion of his legal advisors in support?

    Reporters such as Stephen Grey tell us about secret programs such as “extraordinary rendition“. More use of “deadeningly bureaucratic language”, as Steven put it – “extraordinary rendition” is a euphemism for state-sponsored kidnapping of terrorist suspects and placing them beyond the rule of law in countries that ordinarily practice torture, imprisoning them for long periods of time in horrible conditions. In other words, torture by proxy and indefinite imprisonment with no recourse to the law.

    If we get it wrong (that is, if we kidnap an innocent person) it has a different name: “erroneous rendition”. Two examples of those erroneously renditioned/rendered (not sure of the conjugation here, but rendered seems appropriate): Maher Arar and Khalid el-Masri.

    Once, I was discussing Maher Arar’s case, and my opponent claimed that Arar’s account could not be trusted – that Arar was a liar. Why? Because he had admitted to giving a false confession under duress!

    The curious thing here is that, except for Franco Pillarella, we all, as far as I know, even supporters of extraordinary rendition, agree such countries ordinarily practice torture. It’s just that with regard to this type of prisoner, we have received “diplomatic assurances”, or “memorandums of understanding“, that they won’t be tortured, among other things.

    It may be worth noting that Tony Blair, our former PM, once asked why we needed such assurances – you know, peculiar to ask of a known human rights abuser that the deportee “shall receive ill treatment whilst in detention”, “they shall receive a fair and public hearing by an independent and impartial judiciary” and so on – writing it was “a bit much” and wondering “why do we need all these things”.

    But let’s assume for the sake of argument that diplomatic assurances are worth the paper they are printed on. After all, who am I to argue with diplomats, Prime Ministers, and Presidents?

    What then is the purpose behind placing the suspect beyond the rule of law, if not to be allowed to pursue extralegal (illegal, not better than legal) activities? And, if so, what activities are we talking about? It is a great shame and pity that our government in particular won’t even discuss it.

    Now, to turn to waterboarding, another euphemism – this time for controlled drowning (at best), rather than some sort of water sport. Historically ruled illegal by the US courts. Ok, ignore legal precedent. Have a look at the US code. Does waterboarding meet that definition?

    Well, no. According to the US administration, it is instead an “enhanced interrogation technique”.

    Torture should never be made legal, even in Clinton’s one in a million case, as endorsed by Alan “Needles” Dershowitz, where

    you picked up someone you know is the No. 2 aide to Osama bin Laden. And you know they have an operation planned for the United States or some European capital in the next three days. And you know this guy knows it. Right, that’s the clearest example. And you think you can only get it out of this guy by shooting him full of some drugs or waterboarding him or otherwise working him over.

    Here our trained and trusted interrogator should follow the law. If that doesn’t seem to work, he should follow his conscience, and if this means he commits an offence, he should be prepared to take his chances in front of a jury.

    (I apologise if this comment is too long)

  10. 10  Jeff Strabone  November 14, 2007, 7:56 am 

    Steve, I appreciate your take on ‘personally’. While the word does have its legitimate uses, it too often bolsters the false appearance of disinterestedness.

    Lexis-Nexis has not posted it, but keep your eyes peeled for the transcript of the U.S. House Judiciary Committee’s hearing of November 8, 2007. It was specifically the Subcommittee on Constitution, Civil Rights and Civil Liberties. The star witness, as described by the Committee’s website, was:

    Steven Kleinman
    Colonel, USAFR
    Intelligence & National Security Specialist
    Senior Intelligence Officer/Military Interrogator

    His testimony is a key document in the argument against the criminological reliability of information obtained by torture. Here is an actual U.S. military interrogator explaining why torture ruins interrogations. While we wait for the transcript, here is an excerpt from his written statement to the Committee:

    ‘A notable example of this emerges during discussions surrounding the so-called “Ticking Bomb” scenario. As the parties argue the legal and moral implications of using
    coercive methods to extract information that, according to the scenario, would save thousands of lives, there is an erroneous pre-supposition both sides seem too willing to accept: that coercion is ultimately an effective means of obtaining reliable intelligence information.

    This conclusion is, in my professional opinion, unequivocally false.’


    ‘Before addressing the concept of what has been described as “enhanced” interrogation methods, I believe it might be useful to present a brief summation of what over twenty years of operational experience has taught me about
    interrogation, both what it is and, perhaps more importantly, what it is not.’

    Talking Points Memo has reported his actual testimony in a brief item:

    ‘But if a detainee has his hands tied, or if a detainee shivers because a room is chilled, then “I don’t know whether he’s shivering because the room is cold or because my questions are penetrating,” Kleinman said. That degree of abuse “takes away a lot of my tools.”‘

    There is more to it that I leave for you to discover. I will probably blog about it, too, once the transcript appears.

    But there you have it: torture takes away our interrogators’ tools. Do Alan Dershowitz et al. want to take away our interrogators’ tools and tie their professional hands behind their backs? That would be downright unpatriotic. Apparently, Dershowitz wants the terrorists to win.

  11. 11  Jeff Strabone  November 14, 2007, 7:58 am 

    I meant to say that Lexis-Nexis has not posted it yet. I did not mean to imply anything sinister. Congressional activities typically take a few days to appear online in official transcripts.

  12. 12  KB Player  November 14, 2007, 1:59 pm 

    Interesting stuff. Another nuance to the “personally” is that it shows you are a broad-minded individual. “Personally I can’t stand football but I won’t oppose building the new stadium near me as I know a lot of people like it.” “I am personally opposed to torture but, hey, it might just work so who am I to bring my stuffy legalities along to spoil the party?”

  13. 13  richard  November 14, 2007, 3:46 pm 

    What if there’s a huge bomb somewhere in the centre of London and the police have brilliantly managed to track down a guy they are absolutely sure is responsible for this attack that they absolutely know is going to happen,

    …and they shoot him 7 times in the head?

  14. 14  Steven  November 14, 2007, 6:34 pm 

    Surely shooting someone seven times in the head is rather ineffective even as torture goes?

    Jeff, thanks for the information about Col Kleiman’s testimony, he seems to have made a very interesting point.

  15. 15  abb1  November 14, 2007, 11:45 pm 

    Chris Lloyd has a point. Personally I’m opposed to cannibalism, but should I survive an Andes plane crash, I just might decide to practice it for a while. But, unlike Alan, I don’t feel that my hypothetical act of cannibalism has to be performed in a way consistent with democratic theory.

  16. 16  richard  November 15, 2007, 3:50 pm 

    rather ineffective even as torture goes?

    I’d have to agree. I’m just recalling the time when the police spokepeople bravely stated that they were sure they were thwarting terrorists, and not randomly gunning down members of the public. At one point they seemed to think they had flawless information, and that’s what they did with it.

  17. 17  Steven  November 15, 2007, 4:28 pm 

    Meanwhile, Christopher Hitchens reports that having his body waxed was “like being tortured for information you do not possess”.

    I lol’d.

  18. 18  JCR  November 16, 2007, 7:57 pm 

    The scenario of a hidden bomb where torture is needed to discover its locaton is a common one. I believe any reasonable person would torture another person to save a million lives if a nuclear device was known to be hidden and ticking. The problem arises with the interpretation of where to draw the line. Is the mere possibility that millions could be killed enough to torture a suspect? If so, does that mean it is ok to torture to discover IF millions are in danger? Hundreds? Tens? How about the names of accomplices who might, one day, acquire a bomb to use against millions?

    There is a simple solution to this dilemma. Any person who tortures another should be willing to undergo the same type and intensity of torture himself. I believe this would bring a new clarity and focus to the very serious decision if torture is necessary in any particular circumstance. Presumably torturers only torture because they see the pain, suffering and psychological damage inflicted to be worth the results, and maybe it is in some situations. Would it then not follow that their own pain and suffering would also be worth the desperately needed information? Would an agent torture another for hours to discover names of accomplices if he knew he would be tortured for hours in turn? Probably not. To save millions in London?

    If torture in a given situation is ever deemed to be necessary, then a law requiring the torture of the torturer would be the ultimate litmus test of “necessary”.

  19. 19  Steven  November 16, 2007, 8:03 pm 

    It’s an interesting idea. But to whom falls the unhappy job of torturing the torturer?

  20. 20  Alex Higgins  November 17, 2007, 12:57 pm 

    Here’s a torture scenario:

    What if many of the world’s governments and their security agencies wanted to use torture as, say, a mechanism of control?

    It’s a hypothetical of course, but what if governments around the world saw torture as a method of intimidation and punishment that allowed them to cow opposition, entrench their own power and even establish in foreign territory where they can expect the most resistance? And that if torture’s usefulness in this regard actually trumped other concerns including intelligence-gathering?

    And they even use torture as a means of killing people as opposed to their declared motive of saving lives?

    Should it be allowed?

    I think this scenario should be discussed.

  21. 21  JCR  November 18, 2007, 8:16 pm 

    True, torturing torturers isn’t workable in reality (but in theory you could slip him anonymously into a line somewhere with a bag over his head.)

    But the idea of severe, guaranteed sanctions against you personaly as a torturer is a good one. Is the information you will get worth the five years of solitary confinement in a SecureMax prison you know will be handed to you? Are you willing to make that sacrifice to get this information?

  22. 22  Steven  November 18, 2007, 10:16 pm 

    Well, I suppose another problem is that the torturer and the person who commands that the subject be tortured aren’t necessarily the same person. Do they both get tortured? By a reserve torturer to whom the guarantee is extended that he won’t get tortured in turn? In which case, isn’t that a little unfair on the first torturer?

    Alex: your scenario is just the kind of totally implausible fiction that gives these discussions a bad name. ;)

  23. 23  Stephen Paulger  November 20, 2007, 5:05 pm 

    I believe in this context “personally” is being used to excuse a kind of schizophrenia. His “personal” persona is, of course, opposed to torture. Yet his professional persona is willing to accept it.

    Alternatively he is saying that he “personally” wouldn’t want to be tortured.

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