Dershowitz on Torture

Many of us have been wondering when Alan Dershowitz would weigh in on the Abu Ghraib scandal, given his surprising advocacy of the limited use of torture in the war on terrorism a couple years ago. (See, for example, this LA Times op-ed written shortly after 9/11, Chronicle of Higher Education interview, and his book Why Terrorism Works: Understanding the Threat, Responding to the Challenge.) He has finally entered the public discussion with an op-ed in today’s Baltimore Sun entitled “Rules of war enable terror.”

THE GENEVA Conventions are so outdated and are written so broadly that they have become a sword used by terrorists to kill civilians, rather than a shield to protect civilians from terrorists. These international laws have become part of the problem, rather than part of the solution.

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Terrorists who do not care about the laws of warfare target innocent noncombatants. Indeed, their goal is to maximize the number of deaths and injuries among the most vulnerable civilians, such as children, women and the elderly. They employ suicide bombers who cannot be deterred by the threat of death or imprisonment because they are brainwashed to believe that their reward awaits them in another world. They have no “return address.”

The terrorist leaders – who do not wear military uniforms – deliberately hide among noncombatants. They have also used ambulances, women pretending to be sick or pregnant, and even children as carriers of lethal explosives.

By employing these tactics, terrorists put the democracies to difficult choices: Either allow those who plan and coordinate terrorist attacks to escape justice and continue their victimization of civilians, or attack them in their enclaves, thereby risking death or injury to the civilians they are using as human shields.

This is certainly true, although hardly new. I agree, though, that this puts terrorists in a different category than uniformed soldiers fighting a war.

The time has come to revisit the laws of war and to make them relevant to new realities. If their ultimate purpose was to serve as a shield to protect innocent civilians, they are failing miserably, since they are being used as a sword by terrorists who target such innocent civilians. Several changes should be considered:

  • First, democracies must be legally empowered to attack terrorists who hide among civilians, so long as proportional force is employed. Civilians who are killed while being used as human shields by terrorists must be deemed the victims of the terrorists who have chosen to hide among them, rather than those of the democracies who may have fired the fatal shot.
  • Second, a new category of prisoner should be recognized for captured terrorists and those who support them. They are not “prisoners of war,” neither are they “ordinary criminals.” They are suspected terrorists who operate outside the laws of war, and a new status should be designated for them – a status that affords them certain humanitarian rights, but does not treat them as traditional combatants.
  • Third, the law must come to realize that the traditional sharp line between combatants and civilians has been replaced by a continuum of civilian-ness. At the innocent end are those who do not support terrorism in any way. In the middle are those who applaud the terrorism, encourage it, but do not actively facilitate it. At the guilty end are those who help finance it, who make martyrs of the suicide bombers, who help the terrorists hide among them, and who fail to report imminent attacks of which they are aware. The law should recognize this continuum in dealing with those who are complicit, to some degree, in terrorism.
  • I essentially agree with Dershowitz on these points, although I would note that legal accountability and popular sentiment don’t always go hand-in-hand. While I agree with the Kantian notion that the consequences of evil are the blame of the party that establishes the condition, the propaganda value of acting as if everyone believed this could be potentially devastating. And, of course, care has to be taken to avoid collateral damage regardless of the legal culpability.

  • Fourth, the treaties against all forms of torture must begin to recognize differences in degree among varying forms of rough interrogation, ranging from trickery and humiliation, on the one hand, to lethal torture on the other. They must also recognize that any country faced with a ticking-time-bomb terrorist would resort to some forms of interrogation that are today prohibited by the treaty.
  • This is also probably true and accords with de facto practice if not the de jure regulations. But, as Dershowitz himself has acknowledged, the “ticking time bomb” exception is likely to be incredibly rare. One wonders therefore what the value is of making a big production of codifying the fact that extreme circumstances might call for extreme measures. Creating this as an exception on the books would seem to invite abuses. Of course, going back to Dershowitz’ premise, it’s unlikely many of our future enemies will care for the nicities of Geneva or any other international rules.

    FILED UNDER: Law and the Courts, Terrorism,
    James Joyner
    About James Joyner
    James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

    Comments

    1. Jem says:

      I guess I’m trying to figure out what would be new in Dershowitz’s advocacy. The Laws of Armed conflict–at least as they were taught to me in my role as a target intelligence officer– already (1) make clear that use of protected facilities by combattants are sufficient cause to remove their protected status, so long as proportionality is satisfied, and (2) make clear that those who engage in combat while out of uniform and other elements recognized by the terrorists are not entitled to the Conventions’ protection. The third element seems to me a description of a problem that could be resolved by recognizing that those engaged in a conspiracy with terrorists (by providing support) could be detained as agents of the unlawful combattants.

    2. Bob M says:

      The objective would be not so much that they would be new, but that they would be widely understood and accepted as appropriate under the circumstances. Following them now, in good conscience and with the best intentions, still gets you hammered by International Amnesty, NYT, Peter Jennings, Al Gore, etc. “You are violating the sacred Geneva conventions” even if technically you aren’t!

    3. James Joyner says:

      Jem, I agree with Bob’s take on this.

      Right now, it’s just considered horrible to use force against a village when you’re necessarily going to kill lots of civilians when you have an unmarked target.

      And everyone–including the “evil” Rumsfeld–seems to think that the Iraqi insurgents are entitled to EPW status, which is just crazy.

    4. Jem says:

      You are, of course, correct that it is perception vice reality that makes following the Conventions problematic. Still, I doubt getting a bunch of lawyers together to agree on what the Conventions already say is going to have any impact whatsoever on the information campaign that must be waged against the misconceptions of the media (and, therefore, the public).

      I just don’t think its possible to get to consensus when the US is so much more powerful than any other state (and which essentially forces all potential military opponents–state or non-state–to insurgency as a tactic) and many of the other states (e.g., Russia, France & China) so brutal in their treatment of insurgents that they won’t want any constraints on their conduct. The Arab states will want virtually all insurgents treated as lawful combatants and the “allies” I listed above will insist on having virtually none so designated. Wow, I sure sound like a pessimist!

      The American press will only sign onto what Dershowitz recommends when there is a Democrat in the White House (maybe) and the foreign press probably never will…the discussions Dershowitz is talking about will be panned as “backsliding on human rights”.

      I suspect the only way to change the perception is to immediately and aggressively get correct information out–in the local language(s), as well as in English. Naturally, we’ll take some lumps, but at least we’ll have a chance to influence the discussion before our enemies can firmly define the terms. It won’t matter in coverage by al-Arabiya, al-Jazeera, Le Monde, The Guardian, and similarly biased sources, but we might have a chance of more neutral treatment by those with less bias.

    5. James,
      Apologies for double-trackback. Haloscan has something funky going on.

    6. J_Crater says:

      I wonder if George W. Bush or John Kerry thinks the Geneva Conventions need to be rewritten/rethought/updated to include different handling of terrorist who operate outside the perview of the ordinary laws of war or civility.
      I have seen that the White House Counsel called the conventions “quaint,” but what does that mean ? Does John Kerry feel the same.
      Will they do anything ?
      I need to know. We need to know. Our lives may depend on it.

    7. The Geneva Convention is a vacuous document that has failed to protect American captives in Korea, Vietnam OR the Middle East from torture. It is a document designed for warfare between France and Britain or Denmark and Sweden. I handled the personal affairs of Commander “Pete” Bucher for the year he and his crew of the Pueblo were in North Korean prison — and I recently assisted his widow at his funeral. Please explain what the Geneva Convention did for the Pueblo crew?