Alan Dershowitz advises the Democrats not to look soft on national security--and not to rule out torture in all conceivable circumstances. He approves of the (Bill) Clinton doctrine on the issue:
Consider, for example, the contentious and emotionally laden issue of the use of torture in securing preventive intelligence information about imminent acts of terrorism--the so-called "ticking bomb" scenario. I am not now talking about the routine use of torture in interrogation of suspects or the humiliating misuse of sexual taunting that infamously occurred at Abu Ghraib. I am talking about that rare situation described by former President Clinton in an interview with National Public Radio:
"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."
He said Congress should draw a narrow statute "which would permit the president to make a finding in a case like I just outlined, and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court." The president would have to "take personal responsibility" for authorizing torture in such an extreme situation. Sen. John McCain has also said that as president he would take responsibility for authorizing torture in that "one in a million" situation.
I disagree with that solution, for reasons I have already discussed--though Dershowitz is certainly right about the danger Democrats face if they seem soft on security. This is the Republicans' best hope next year. But what I found most interesting about Dershowitz's article was the paragraph that follows the ones I just quoted:
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.
"Although I am personally opposed to the use of torture..." What an extraordinary evasion. Talk about ethical dissonance. He is opposed to torture--apparently in all and any circumstances--but urges the next president not to be! Truly, lawyers are not like the rest of us.
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