A new phase in the evolution of liberal values is under way in the United States. America’s most celebrated defender of civil liberties has initiated a new debate on torture. The context of Professor Alan Dershowitz’s argument is American, but its meaning – like that of all true liberal principles – is universal. The force of his argument promises to transform liberal institutions throughout the world.
Using impeccable scholarship and the most rigorous logic, the distinguished Harvard legal scholar has demonstrated that nothing in the US Constitution forbids the use of torture. In interviews with the American media, Dershowitz has noted that while the Fifth Amendment prohibits self-incrimination, that means only that statements elicited by torture cannot be used as evidence against the person who has been tortured. It does not prohibit torture itself. Neither does the Eighth Amendment, since the ban on “cruel and unusual punishments” applies only after an individual has been convicted. The belief that torture is unconstitutional in America may be widespread, but it is a fallacy – the product of rudimentary errors in legal reasoning.
So torture is permitted by the American Constitution. But it remains legally unregulated. To fill this gap, Dershowitz advocates the introduction of “torture warrants”. Just as the FBI applies to the courts for search warrants, so it should be able to apply for torture warrants. At present, there is nothing in the law that explicitly authorises the use of torture to extract information from terrorists. If it is used, as it often is, it is used extra-legally. As Dershowitz has pointed out, this is a highly unsatisfactory state of affairs. The rule of law is a core liberal value. It cannot be compromised in the fight against terrorism. Torture, therefore, must cease to be something practised beyond the law; it must become part of normal judicial procedure.
If liberal thinkers in the past have shied away from rigorous thinking about torture, it is because they have been unduly influenced by history. Enlightenment thinkers such as Montesquieu and Voltaire campaigned indefatigably against judicial torture, and viewed its abolition as a vital step in human progress. In their own time, no doubt, they were right. These partisans of liberty were locked in conflict with the entrenched tyrannies of Europe’s ancien regime. In attacking judicial torture, they were aligning themselves with the cause of progress and humanity.
The present situation is quite different. In the despotic, reactionary states against which Montesquieu and Voltaire struggled, torture was used to bolster arbitrary power. Now the liberal civilisation of which they dreamt actually exists – in the United States of America. Today torture is used to defend free societies from attack by their enemies. Many liberals – especially in Europe – seem unable to grasp this distinction. Mired in the past, they are blind to the emerging new regime of universal rights.
Where European thinkers have allowed recourse to torture at all, they have allowed it only in extreme situations. For Hobbes, justice was a set of conventions that societies adopted in order to achieve what he called “commodious living” – a peaceful, civilised existence. When order breaks down, in this view, the conventions of justice lapse. If a radiological bomb has been planted on the London Underground, torture may be the only way of disarming the device in time and thereby saving hundreds of thousands of lives. No government can avoid recourse to torture in such circumstances. Human beings turn to the state for security. If the state fails to provide it, it will be overthrown.
The trouble with this view of torture is that it remains stuck in the blood-soaked history of old Europe. It assumes that any act of torture leaves an indelible moral stain – even when the alternative, the destruction of many innocent lives, is unthinkable. It reduces torture to a desperate expedient whose rightful place, if any, is in darkened cellars. Seeing the struggle against terrorism in this way only weakens our resolve. Rather than wallowing in pessimism, we need to view the reintroduction of judicial torture as the next step in human progress.
Bringing torture out of the cellar into the clear light of day will require a far-reaching modernisation of the law, but before that can be achieved we need a parallel reform in our thinking about human rights. Fortunately, we can draw on the most advanced thinking in contemporary liberal philosophy – the theory of justice elaborated by the late John Rawls. The eminent Harvard philosopher seems not to have grasped the full implications of his theory; but one of its central features is the insight that basic liberties cannot conflict. For European thinkers such as Hobbes and John Stuart Mill, one liberty collides with another; even the same freedom exercised by one person can conflict with that of another. Freedom of expression clashes with freedom from hate speech; one person’s freedom of association (in a whites-only club, for example) is another’s wrongful discrimination. Hobbes and Mill saw these as conflicts that we cannot hope to resolve completely; the best we can do is to strive for a compromise in which the competing claims are balanced against one another.
American liberal philosophers have rejected this messy and uninspiring view. They have shown that all our liberties belong in a single, unified system. When they are properly “contoured” – that is, defined so that they cannot collide with one another – human rights need never conflict. Thus, when freedom of speech clashes with freedom from hate speech, it is denied that the latter is a genuine freedom.
The relevance of this insight to the question of torture should be self-evident. The belief that torture is always wrong is a prejudice inherited from an obsolete philosophy. We need to shed the belief that human rights are violated when a terrorist is tortured. As Rawls and others have shown, basic freedoms must form a coherent whole. Self-evidently, there can be no right to attack basic human rights. Therefore, once the proper legal procedures are in place, torturing terrorists cannot violate their rights. In fact, in a truly liberal society, terrorists have an inalienable right to be tortured.
This is what demonstrates the moral superiority of liberal societies over others, past and present. Other societies have degraded terrorists by subjecting them to lawless and unaccountable power. In the new world that is taking shape, terrorists, although they themselves degrade human rights by practising terrorism, will be afforded the full dignity of due legal process, even while being tortured. We can look forward to a time when this right will be available universally.
It is clear that the new regime of human rights that is emerging will not be confined to the United States. The US will not rest until other states have also adopted it. Developing a modern, liberal regime for the practice of torture will require reform of international treaties. The UN Declaration of Universal Human Rights embodies the discredited view that torture is inherently incompatible with respect for human rights. Along with other international treaties, it needs modernisation. Securing agreement on the changes that are required may seem a daunting task. Our experience during the Iraq crisis suggests it is not impossible, however. Using its formidable resources, the US has persuaded a number of refractory states of the wisdom of launching a pre-emptive attack to dislodge the rights-violating regime of Saddam Hussein. It can surely be relied upon to secure a similar agreement around reform of the international law on torture.
There is a deeper reason for believing that the new regime of rights will be universal. Dershowitz’s contention that torture is not forbidden by the US Constitution may look like a purely local argument; but that is to disregard the universal validity of the principles on which the Constitution is founded. Human rights are not just cultural or legal constructions, as fashionable western relativists are fond of claiming. They are universal values. To deny the benefits of the new regime of rights to other cultures is to patronise them in a way that is reminiscent of the colonial era. If the new regime on torture is good enough for the US, who can say that it is not good for everyone?
In practice, there will be countries that resist the new order. Rogue states are nothing new. Those that choose to defy the emerging consensus, however, must accept that they thereby place their legitimacy in question. States that refuse to modernise their laws on torture cannot expect the protection afforded them in the past by old-fashioned notions of sovereignty. They must expect increasing pressure to conform to global norms. If, despite all attempts at persuasion, they persist in opposing the international community, they will face action to enforce regime change.
No one will deny that the reintroduction of torture into the legal process will present some difficult problems. At present, torture is normally contracted out to less developed countries; but sending terrorists to friendly dictatorships for interrogation is hypocritical – and possibly inefficient. Surely it is far better that we do the job ourselves. If we do, however, we will need a trained body of interrogators, backed up by a staff of doctors, psychiatrists and other specialists. A new breed of lawyer will have to deal with the tricky cases that are bound to arise when people suffer injury or death under interrogation. We shall need expert social workers, trained to help the families of subjects under interrogation. Universities in particular must show they are capable of delivering the skills that will be required.
It would be wrong to forget the needs of the interrogators themselves. In the past, torturers were shunned as outcasts – a tacit admission that they acted as the servants of tyrants. If we are to put interrogators to work in defence of liberal values, their role in the community must receive proper recognition. They will require intensive counselling to overcome the inevitable traumas that this difficult work involves. They must be enabled to see themselves as dedicated workers in the cause of progress. Psychotherapy must be available to help them avoid the negative self-image from which some torturers have suffered in the past. Unlike torturers who violated human rights at the behest of tyrants, interrogators who apply their skills to terrorists today are in the vanguard of human progress. In effect, they are practitioners of a new profession. Those who enter it must feel that society values them.
Changing the law on torture may seem to be only one more item on the agenda of modernisation – part of the ongoing process of law reform, in which archaic notions about double jeopardy and trial by jury have already been swept away. Still, the problems posed by changing our policies on torture are undoubtedly more challenging than those we have confronted and overcome in other areas of reform. Especially in Europe, the reforms that are so urgently needed run up against an ingrained conservatism that treats inherited patterns of thought as sacrosanct.
We need nothing less than a fundamental advance in moral thinking. Liberals have often stressed that we must question the values we inherit from the past. The debate initiated by Alan Dershowitz shows that – in America, at least – they are not afraid to apply this lesson. The world’s finest liberal thinkers are applying themselves to the design of a modern regime of judicial torture. At a time when civilisation is under daily threat, there can be no more hopeful sign.
John Gray’s next book, Al-Qaeda and What It Means To Be Modern, will be published by Faber and Faber in May
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