After suggesting in a November 5 column that the U.S. consider subjecting terror suspects to torture, Newsweek’s Jonathan Alter is trying to change his story.
Responding to a critical letter to the editor in Newsweek's November 19 issue, Alter claimed, "At both the beginning and the end of my column, I wrote that I oppose legalizing physical torture."
Alter’s column did say that legalizing physical torture wouldn’t work in the U.S. Instead, he suggested we consider using "legal" forms of psychological torture at home, while "transferring some suspects to our less squeamish allies." In other words, send them overseas for the real thing.
That may sound like a distinction without a difference, but apparently Alter believes that getting others to commit crimes against humanity on your behalf gets you off the hook, legally and morally.
It doesn’t. Torture is illegal under both international and U.S. law. In signing the Convention Against Torture in 1994, the U.S. bound itself to oppose torture overseas and at home. Article 4 of the Convention obligates all state parties to ensure that all acts of torture are criminal offenses under domestic legislation. And even if the U.S. had not signed the Convention, it would still be subject to customary international laws forbidding torture. According to Human Rights Watch, violations of such laws are "subject to universal jurisdiction, meaning that any state can exercise its jurisdiction, regardless of where the crime took place, the nationality of the perpetrator or the nationality of the victim" ("The Legal Prohibition Against Torture," www.hrw.org).
Sending suspects abroad to be tortured? Again, it’s illegal all around. In addition to the Convention Against Torture, which expressly forbids sending a person anywhere "where there are substantial grounds for believing that he would be in danger of being subjected to torture," U.S. statutory law prohibits transporting persons for torture. Citing Title 18, Section 242 of the United States Code, legal writer Karen L. Snell notes (Recorder, 10/31/01):
The use of pressure tactics, including torture by proxy, not only renders evidence obtained inadmissible in court. It's also a crime. And it is not just the person who physically or mentally assaults a suspect who is guilty. Any person who aids, abets, counsels or conspires to commit such acts is a criminal.
And what about psychological torture? International law makes little distinction between physical and psychological torture. Article 1 of the Convention defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession."
Alter is only one of several pundits who seemed compelled to advocate torture in various forms--regardless of U.S. or international law.
In the November 8 Los Angeles Times, legal scholar and columnist Alan Dershowitz suggested that torture is not unconstitutional--as long as "the fruits of such techniques" are not used against the subject in a criminal trial, since that would violate the subject’s Fifth Amendment right against self-incrimination. Because torture is not unconstitutional and just may be necessary in extreme cases, argues Dershowitz, it ought to be supervised by special judge-administered "torture warrants."
Dershowitz’s narrow legalistic argument fails to address other constitutional protections against torture routinely cited by legal scholars (not to mention statutory prohibitions against torture found in international and U.S. laws). In fact, U.S. courts have found constitutional protections against torture not only in the right against self-incrimination, but also in the Fourth Amendment's prohibition on unreasonable search or seizure, the Eighth Amendment's ban on cruel or unusual punishment, and the Fifth and the Fourteenth Amendments' guarantees of due process ("The Legal Prohibition Against Torture," www.hrw.org).
No pretensions to legal scholarship attended the pro-torture shoutfest that took place on the McLaughlin Group’s November 9 show, where four out of five of the panelists endorsed torture. The Washington Times’ Tony Blankley and MSNBC’s Laurence O’Donnell joined host John McLaughlin and National Review editor Rich Lowry in approval of torture. Only Newsweek’s Eleanor Clift objected. (When Clift asked her co-panelists where they would send suspects for torture, McLaughlin shouted, "The Filipinos!" while Lowry barked, "The Turks!")
On October 26 CNN news anchor Paula Zahn pressed Philadelphia police commissioner John Timoney, trying to get him to endorse extra-legal means in the case of terror suspects. When she asked him if "beatings" might be appropriate, Timoney stood his ground: "No. No. This is America, you know."
A day later on CNN’s Crossfire (10/27/01), conservative Tucker Carlson was succinct: "Torture is bad. Keep in mind, some things are worse. And under certain circumstances, it may be the lesser of two evils. Because some evils are pretty evil."
Yes, they are. That’s why torture is considered a crime against humanity, and why no exceptions are provided for it in the Convention, which reads: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."
On the Wall Street Journal’s editorial page (10/25/01), historian Jay Winik cited a case in which Philippine authorities tortured a suspected terrorist, reportedly thwarting plans to crash U.S. jetliners. Without technically endorsing torture, Winik mused, "One wonders, of course, what would have happened if [the terrorist] had been in American custody?"
This evident confidence in the efficacy of torture seems to be shared by many pro-torture pundits, though as Human Rights Watch points out, "the unreliability of forced confessions was one of the principal reasons that U.S. courts originally prohibited their use." As early as the 18th Century, political philosopher Cesare Beccaria warned that the victim of torture "will accuse himself of crimes of which he is innocent" (and will falsely implicate others "yet more readily"). Former FBI official Oliver Revell concurs: "People will even admit they killed their grandmother, just to stop the beatings" ("The Legal Prohibition Against Torture," www.hrw.org).
One remarkable thing about the recent interest in torture is that it comes almost entirely from pundits--virtually no politicians, federal officials or law enforcement agents have come forward to say that torture was a tool they needed. One exception was found in an October 21 Washington Post news article, in which unnamed FBI officials expressed frustration at their inability to get information from four suspects they believed were linked to the September 11 attacks. One FBI agent told the Post:
We are known for humanitarian treatment, so basically we are stuck.... Usually there is some incentive, some angle to play, what you can do for them. But it could get to that spot where we could go to pressure....where we won’t have a choice, and we are probably getting there.
According to a later USA Today article (12/7/01), however, "U.S. agents now doubt that any of the more than 600 people who have been detained at one time or another in the September 11 probe actually was involved in the hijacking probe." If the pro-torture pundits had had their way, that’s a conclusion that might have been reached only after torturing the detainees--or perhaps they could have been sent overseas to have false confessions wrung out of them.