When law enforcement agencies such as the CIA take into account the lives of the American people there are three values that are relevant to almost all terrorism cases. The first of the values is the safety and security of a nation’s citizens. If the only way to stop a bomb from exploding and endangering many people is to use torture then it may be justified. Preservation of civil liberties and human rights is the second value. Liberty can be defined as our right to think, act, or behave without any interference from our government. Under this value we cannot accept the legal use of torture within our legal system. In our country everyone has the right to pursue happiness in their own way as long as they don't violate the rights others. At what point do we step in and use torture to help prevent a terrorist from violating the right to life of an innocent American? The Third is open accountability and visibility in democracy. Doing something off the books violates the value of open accountability since we are unaware of an immoral event occurring, such as the usage of torture. When we start to look at the values of life they then can overlap putting torture into a grey area of not knowing how to justify it within our legal system.
According to a retired Supreme Court justice, there are “three ways for solving this grave dilemma between the vital need to preserve the very existence of the state and its citizens, and maintain its character as a law abiding state.” The First way to solve the problem is allowing the torture to occur outside the realm of law; allowing it only in places where our law jurisdiction is void. Our second option is to set laws against the use of torture, and when an event such as the “Ticking Bomb” case arises we use torture and act as if we do not know that it is going on. If we were to choose this way to solve our problems we would start to have an untrustworthy government system; a system where laws do not matter. Our third option to solving the dilemma would be to construct a legal framework to encompass torture into our laws of everyday legal practices. There is a final option of not allowing any means of torture no matter what the circumstances are. With no means of torture we could end up in a spot with a case such as ours where we let a preventable act of terrorism occur and let many innocent people die.
Alan Dershowitz got involved in this case about terrorism when traveling around the world conducting research and teaching a class in Israel. While there he learned first hand about using torture techniques to obtain useful information about future attacks. After studying terrorism he has concluded that some terrorists are acting for a means of attention, and no matter what policies we have set in place to deter them, we actually reward them with the attention they are seeking. In order to deter terrorism we must learn to punish them within our moral standings. He has made a proposal to the problem. His viewpoint on the issue stems from the third option of encompassing torture within the framework of the law. He creates a proposal for judicially sanctioned torture. Dershowitz tells us about England many years ago and how the government controlled torture. We learned that less torture happened because it was under centralized control; no regular law enforcement officer just acquired the power of using torture without a special warrant.
By using a system of checks and balances we would have a better controlled torture system, in the event of a terrorist case. In order to use torture to gain information that could potentially save lives, the law enforcement would have to have enough information to get a warrant for its proper use. From having a centralized system it would be visible to the public eye, thus easier to control over an off the books approach. We lose our democratic accountability when we start to do things off the book. People who agree with torturing the “Ticking Bomb” terrorist may find Dershowitz’s proposal for judicially sanctioned torture reasonable. The whole point of judicially sanctioned torture is not to encourage the torture of terrorist suspects but to limit the use of it. As Langbein demonstrates torture warrants when used in sixteenth and seventeenth century England resulted in fewer occurrences of torture, as compared to the number of incidents in France, where torture fell into local law enforcement.
His proposal for judicial sanctions on the use of torture may be justified for the case of the “Ticking Bomb” terrorist case. Other viewpoints not in favor of torturing the suspect will outweigh many of the justifications of torture. Earlier in the semester we discussed the Kantian View point and applied his view to different cases to morally justify if the case is right or wrong.
In Immanuel Kant’s moral theory “the general requirement to treat all persons as ends in themselves and never as means to an end.” When we use torture to gain information in such a case as the “Ticking Bomb” case we are only using the terrorist as a mere means to find what we need. Under the Kantian Moral Theory we would object to using torture on suspect for the purpose of possibly preventing a terrorist attack. The justification of using one human life as only a mere means for saving others is morally unjust in these terms.
Another objection to his proposal is we are having a person of equal standing as the suspect warrant the legal use of torture upon another human being. When we first capture a terrorist it is impossible to confirm with certainty what any suspect actually knows; ticking bomb torture can be justified in virtually every interrogation. When a judge is issuing the warrant to torture the terrorist he is allowing the use of torture on a non-convicted human being. Since we do not know what the suspect actual knows, and what we do know makes him only a suspect. He is free until proven guilty, under U.S. law. Judges do give sentences to people that have been convicted under all processes of law, but in terrorist cases we are using the torture to gain evidence against the suspect. Under the due process laws in the United States Constitution it strictly prohibits unreasonable search and seizure. When we are torturing a suspect to gain information we are searching the subject. Now isn’t it unreasonable to cause harm upon a human being just to gain evidence?
Alan Dershowitz argues we should sanction under our government laws to torture a terrorist, such as one captured in the “Ticking Bomb” terrorist case, with a warrant received from a judge. Arguing for his proposal of warrant torture, he states that we will minimize cases and prevent terrorists in the future. When protecting our nation’s people we try to preserve the three basic values that nearly all terrorist cases encompass. In this terrorist case we have four options to prevent or allow torture with Dershowitz taking his viewpoint from the third option of constructing a legal framework and preventing it from happening outside the realm of our nation’s laws. I object to his proposal on the grounds of not only Immanuel Kant’s theory of using a person as a mere means to an end, but also because of allowing an equal person to torture another human being just because of a warrant.
