Distinguished Professor Torture

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I was surprised to read in the St. Louis Post-Dispatch that, along with the FBI, Professor Alan Dershowitz of Harvard Law School called for a “national debate” about the circumstances in which torture is permissible, and who should decide when to use it. He even suggested that courts issue “torture warrants” in extreme cases.

Although he is a professor of law at one of the country’s most prestigious law schools, Dershowitz needs to reread the Constitution and spend some time examining the host of international treaties that strictly forbid torturing detainees and injecting them with mind-altering drugs.

Dershowitz’s suggestion that the country create a new type of warrant, known as a “torture warrant,” is preposterous on its face. I can scarcely think of a legal proposition that is more fundamental to our legal system than the presumption of innocence – a presumption that is grossly violated when the police are permitted to torture and drug suspects. For good reasons, our system does not permit judges to impose torture as punishment even after conviction of a crime, and our system certainly does not sanction the use of torture or forced drugging against people who have merely been detained by police.

The Fifth Amendment guarantees that no person “shall be compelled in any criminal case to be a witness against himself,” and protects all people on U.S. soil, whether citizens or not. Torturing a person, or pumping him with drugs in order to extract a confession, is inherently coercive and renders any subsequent statements “compelled,” involuntary, unreliable, and unconstitutional.

An absolute bar on government-imposed torture and drugging exists worldwide and is codified in numerous international treaties. Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights both provide that·no one shall be subjected to tortu.re· or to cruel, inhuman, or degrading treatment or punishment.

Likewise the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture), prohibits “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.”

Further, when the United States ratified the Convention Against Torture, we expressly acknowledged that”torture” includes “the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality.”

While chastising the government’s tapping of phones to enforce Prohibition-era laws, Supreme Court Justice Louis Brandeis observed: “Experience should teach us to· be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” (Olmstead v. United States (1928) 277 U.S. 438.)

In our rush to bring the Sept. 11 terrorists to justice, let’s remember and respect the fundamental values that distinguish the United States from rogue terrorist groups~In our efforts to secure the homeland, let’s· not copy the terror techniques of our attackers.

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