Time To Think About Torture

In this autumn of anger, even a liberal can find his thoughts turning to... torture. OK, not cattle prods or rubber hoses, at least not here in the United States, but something to jump-start the stalled investigation of the greatest crime in American history. Right now, four key hijacking suspects aren't talking at all.

Couldn't we at least subject them to psychological torture, like tapes of dying rabbits or high-decibel rap? (The military has done that in Panama and elsewhere.) How about truth serum, administered with a mandatory IV? Or deportation to Saudi Arabia, land of beheadings? (As the frustrated FBI has been threatening.) Some people still argue that we needn't rethink any of our old assumptions about law enforcement, but they're hopelessly "Sept. 10"--living in a country that no longer exists.

One sign of how much things have changed is the reaction to the antiterrorism bill, which cleared the Senate last week by a vote of 98-1. While the ACLU felt obliged to quibble with a provision or two, the opposition was tepid, even from staunch civil libertarians. That great quote from the late Chief Justice Robert Jackson--"The Constitution is not a suicide pact"--is getting a good workout lately. "This was incomparably more sober and sensible than what some of our revered presidents did," says Floyd Abrams, the First Amendment lawyer, referring to the severe restrictions on liberty imposed during the Civil War and World War I.

Fortunately, the new law stops short of threatening basic rights like free speech, which is essential in wartime to hold the government accountable. The bill makes it easier to wiretap (under the old rules, you had to get a warrant for each individual phone, an anachronism in a cellular age), easier to detain immigrants who won't talk and easier to follow money through the international laundering process. A welcome "sunset" provision means the expansion of surveillance will expire after four years. That's an important precedent, though odds are these changes will end up being permanent. It's a new world.

Actually, the world hasn't changed as much as we have. The Israelis have been wrestling for years with the morality of torture. Until 1999 an interrogation technique called "shaking" was legal. It entailed holding a smelly bag over a suspect's head in a dark room, then applying scary psychological torment. (To avoid lessening the potential impact on terrorists, I won't specify exactly what kind.) Even now, Israeli law leaves a little room for "moderate physical pressure" in what are called "ticking time bomb" cases, where extracting information is essential to saving hundreds of lives. The decision of when to apply it is left in the hands of law-enforcement officials.

For more than 20 years Harvard Law School professor Alan Dershowitz has argued to the Israelis that this is terribly unfair to the members of the security services. In a forthcoming book, "Shouting Fire," he makes the case for what he calls a "torture warrant," where judges would balance competing claims and make the call, as they do in issuing search warrants. Dershowitz says that as long as the fruits of such interrogation are used for investigation, not to convict the detainee (a violation of the Fifth Amendment right against self-incrimination), it could be constitutional here, too. "I'm not in favor of torture, but if you're going to have it, it should damn well have court approval," Dershowitz says.