Rules Should Govern Torture, Dershowitz Says Torture is never acceptable, but it's a reality that should be covered by rules, Alan Dershowitz says. The lawyer and Harvard Law School professor says the president should be held responsible for acts of torture and be required to sign torture warrants.
NPR logo

Rules Should Govern Torture, Dershowitz Says

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript
Rules Should Govern Torture, Dershowitz Says

Rules Should Govern Torture, Dershowitz Says

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript


We would like you to meet a man now, who wants to bring torture out of the closet. The noted lawyer and Harvard law professor, Alan Dershowitz, favors rules to permit torture under some conditions. This morning, his voice begins a series of conversations about American interrogations.


Alan Dershowitz first spoke of torture shortly after the September 11 attacks. He still favors a system of allowing it, though he insists his view is more nuanced than it might seem.

Professor ALAN DERSHOWITZ (Professor, Harvard Law School): I don't think torture is ever acceptable. I think that torture will, in fact, be used - and has, in fact, been used - whenever it is felt that by torturing an obviously guilty suspect, in the terrorism context, the lives of multiple innocent people could be saved. The problem is that today, torture is being used promiscuously, and we deny that we're using it.

Now, I think, what we need to do is acknowledge what we're doing, and create rules, and have visibility, and accountability. And that's what we lack today.

INSKEEP: Wait a minute. You began by saying you didn't think torture was acceptable.


INSKEEP: But you're also saying let's create some rules and systems…

Prof. DERSHOWITZ: That's right.

INSKEEP: …by which we can occasionally do it.

Prof. DERSHOWITZ: That's right. And I'm not saying we should occasionally do it. I'm saying to govern the fact that we will occasionally do it. My normative views are personally against torture. But empirically, as a student of interrogation, I know it will occur.

INSKEEP: You have taken a provocative position, there. If you were making the rules, what kinds of techniques of torture should be inbounds under some circumstances?

Prof. DERSHOWITZ: Well again, I don't think anything should be inbounds. I'm telling you…

INSKEEP: But I mean, with what you're talking about, if you're going to put together rules, should somebody be allowed to pull out fingernails, should they be able - I mean, what should you be allowed to do?

Prof. DERSHOWITZ: That's exactly what has to be debated. It's a very unpleasant debate. We should ask ourselves the question: Should we permit waterboarding? We know, for example, if Sheikh Khalid Mohammed, a very high value detainee, was subjected to waterboarding. That is, he was placed on a board, his head was put into the water, near drowning experiences were inflicted on him. But no physical after-effects were experienced. And the United States government takes the position that's not torture. I disagree. That is torture.

So now we have to have a debate. Should waterboarding be permitted? We know that sleep deprivation is used. We know that loud music is played. We know that smelly sacks are put on people's heads, that they're placed in uncomfortable positions. In a democracy we have to debate whether that's torture, whether that should be permitted, under what circumstances. Should we ever be allowed to put a sterilized needle underneath somebody's fingernails to cause excruciating pain, but no after-effects, if the need for the evidence is overwhelming?

If we think - the president of the United States thinks - it's absolutely essential to defend the lives of thousands of people, he ought to be on the line. He ought to have to sign the torture warrant, in which he says I'm taking responsibility for breaking law, for violating treaties, for doing an extraordinary act of necessity. That's a responsibility only the president should be able to take, and only in the most extraordinary situation.

Right now, we have the worst of all possible situations. We deny we're using torture. We're using it. Everybody can deny they have any role in it. We can't trace it. So we punish a couple of people at Abu Ghraib for the most absurd use of extreme violence that has ever been done, because there, they were low visibility, low-level people. And we used methods that no democracy should ever use. And everybody says, well, it wasn't my fault. It was some low-level dog handler.

INSKEEP: You've argued that, Israelis and others, have come up with examples where they feel…


INSKEEP: …that torture worked - got good information. What were the specific techniques that have been used, that in your view, work?

Prof. DERSHOWITZ: I have no view. I'm not an expert on this. I can tell you that I've spoken to many people in the Israeli Secret Service, and they deny, of course, they use torture. But they claim that putting people in a dark room, putting filthy sacks on their head, putting them in uncomfortable positions, shaking them, having sounds of torture - which are usually recorded and fake -coming from another room so that the person believes he's going to be tortured, and threatening worse; making them feel helpless; has produced information that has save lives that has prevented buses from blowing up.

And to the contrary, they claim that once they were denied the ability to do that, they missed the opportunity to prevent several explosions that killed innocent people. That claim has to be subjected to verification and validation. Nobody should accept any of these stories, simply because they're put forward by intelligence agencies. They have to be tested, validated, and verified by experts.

INSKEEP: Wonder what happened to those Palestinians, who had been tortured, once they were back out on the streets, once they were released?

Prof. DERSHOWITZ: I don't think you have to wonder. I think they became much, much more hateful of Israel. That's one of the prices you pay. And it's a price that has to be taken into consideration. And it may be why you don't use it. But it's far too easy to say that it never works, it always produces far more harms than benefits. If that were the case, then it wouldn't any more be a moral issue. It would be a simple empirical issue: one side would be right, one side would be wrong.

INSKEEP: What would it do with the very meaning of the United States if we woke up occasionally, and the morning news said the president signed the torture warrant today, and we're going to be torturing this guy?

Prof. DERSHOWITZ: It would be much, much better than what we have today, which is the president denies that we do it. Everybody knows that it's authorized from the very top. And everybody knows that it's being widespread. What could hurt the American image more than Abu Ghraib with the president saying we had nothing to do with it? We didn't authorize it. We're punishing the people. Is there anybody in the world who believes that?

I think if we became the first country to say, look, we're going to eliminate the way of the hypocrite. We abolish torture. It's against the law. But like anything else, we may have to shoot down a civilian airplane one day, that is headed toward the Empire State Building. And if that decision has to be made to kill 300 innocent people, it's not going to be made by some local policeman on the ground. It's going to be made by the president of the United States, if he can be reached, or by the vice president, or secretary of defense. When extraordinary decisions of this kind have to be made, they are made at the very top.

And if we ever believe that we ever have to torture somebody to save New York City, or to save thousands of people, that decision has to stop at the White House desk.

INSKEEP: You know, as I listen to you, Professor Dershowitz, I'm reminded of Jonathan Swift's famous modest proposal…

(Soundbite of laughter)

INSKEEP: …in which he called attention to famine in Ireland, and the way that the people were ignoring it, by proposing that the Irish simply eat their babies. He was being satirical, we assume.

Prof. DERSHOWITZ: I'm not being satirical.

INSKEEP: You're serious?

Prof. DERSHOWITZ: I'm serious. I'm proposing a heuristic, which I believe will reduce the amount of torture from what is being done in the world today. It will make us face up to what we're doing, will make us dirty our hands in this filthy, disgusting business of torture. And, I think, reduce its frequency in the world, as we know it today. Because today, we have the worst possible situation. We're doing it and we're denying it.

INSKEEP: Alan Dershowitz is author of Pre-Emption, A Knife That Cuts Both Ways. And you can read an excerpt at

Our discussions continue tomorrow with a doctor who investigated the medical profession's role in interrogations. We asked about the proposal we just heard.

Alan Dershowitz

Unidentified Man: Yeah.

INSKEEP: The well-known lawyer…

Unidentified Man: Yeah.

INSKEEP: …who has argued that…

Unidentified Man: He's wrong.

INSKEEP: Yet, the doctor and Dershowitz agree on one thing. They say the United States is, indeed, practicing torture.

This is NPR News.

Copyright © 2006 NPR. All rights reserved. Visit our website terms of use and permissions pages at for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.