MSNBC show
Alan Keyes is Making Sense
Alan KeyesFebruary 4, 2002
ALAN KEYES, MSNBC HOST: Welcome to MAKING SENSE. I am Alan Keyes.
Tonight we are going to tackle a difficult and uncomfortable subject: torture. It comes up in the context, of course, in our war against terrorism, of our capture of terrorists and of the need to cull from them the kind of information that can help us to deal with possible future terrorist attacks, to identify and root out the cells and networks of terrorism around the world. These are pieces of information that could be vital to us in terms of the survival of people just like you and me. This is a threat that strikes us very close to home, as we tragically saw in New York City.
And so, in the context of the war against terrorism, as Americans, we have had to deal and are having to deal with some very touchy and uncomfortable subjects. We are, after all, a decent people. We are committed to ideas and ideals of human dignity that have been hard won for us over the course of the decades and centuries of our history as a people. We have stood before the world against the abuses that have been practiced by tyrants and totalitarians down through the decades. Throughout the 20th century, we were, in fact, the champions of those who stood against the practice of torture and other abuses of human dignity and helped to produce the kind of understanding, the conventions, the international agreements that have pretty much vanished from any acceptable practice the use of torture. And that we now face in the context of this terrible terrorist threat the possibility that we, ourselves, may be forced by circumstances to resort to the very abuse that we have opposed. This poses a painful issue for all of us I would think of decent conscience. And I heard not long ago that Alan Dershowitz, renowned as one of the champions of civil liberties in this country, and was recommending that we establish a procedure that would actually give a lawful coloration to the practice of terrorism, because we are faced with the harsh necessity that we might have to deal with it.
Well, Alan Dershowitz and I are going to square off later on in the program on that very subject. But before we get to it, we'd like to follow the usual procedure here, because you know we're not just about debating. We are also about trying to understand the difficult issues that face us starting with some basic facts about how we got to where we are, and where, in fact, we stand today with respect to an issue like torture.
Joining us to help us understand this issue is Christopher Whitcomb. He is a former FBI agent. He is somebody who has had to face the realities of some of these tough choices in the field. He has written extensively on this and other subjects that have to do with the actual work of enforcing and maintaining our security, and he is currently an MSNBC analyst — welcome to MAKING SENSE, Christopher. Thank you for joining us.
CHRISTOPHER WHITCOMB, FMR. FBI AGENT: Thanks, Alan.
KEYES: Really appreciate it. Could you give us a sense — first of let's look back just very briefly at the history of this question. And for the longest time in the history of humanity, torture was pretty much a regular practice. How have we reached a time in our world today when it is not really accepted as a legitimate recourse and even in the context of war? How did that come about?
WHITCOMB: Well, I would like to say that humanity has evolved to a point, where we no longer feel a need to torture. That we have developed other techniques, and we have developed the self conscious, where we can look back and say, this worked in the past only because we allowed it to work. That we didn't search for something better. But I think really it's not a humanity issue. It's an American issue. I think that America, and primarily Western European nations, have strayed from torture, whereas many countries in the developing world still rely on torture, not just in times of war, but also as a legitimate law enforcement mechanism as well. KEYES: Now, we have been successful over the course of the latter decades of the 20th century of putting in place certain conventions and international understandings that supposedly stigmatize the practice of torture. Is that not correct?
WHITCOMB: No, we have. There is no doubt about it. But I taught interrogation at the FBI Academy, and it was interesting to see people come in from other countries around the world. We would make our pitch, the FBI pitch on how interrogation can work more effectively than the use of physical torture or physical pain to coerce some sort of cooperation. And they would always laugh and say, look, you know, it's much easier to pull a cord out of a lamp, separate the ends and stick it to someone and get information that way than to sit through an interview process. And then it comes right down to it, Alan, that's not the case. It's much more credible information you get through a long-term interview interrogation process than by inflicting pain.
KEYES: Now, tell me something. Why in the context of that kind of an understanding would we be facing the argument right now that there might be some occasion on which we would need to resort to torture, which we have basically stood against as a people for decades, in the context of this war against terrorism? Is there some basis for that apprehension?
WHITCOMB: Yes, the basis is ease. That people see this as an easy solution. If we face this grand threat, this faceless terrorist threat, isn't it easier to go torture the information out of someone and be done with it? They are willing to fly planes into the World Trade Center and the Pentagon. Isn't it just as easy for us to take this same sort of mentality to them, use torture to coerce information and really play them at their own game? We can't do that.
KEYES: Well, but if what you have just observed is correct, though, is this a kind of means that is, in fact, going to produce information that can advance our intelligence, give us the kind of accurate information we need? I mean, what are the prospects that it will yield the kind of results that would actually contribute to our security?
WHITCOMB: Look, torture will yield a great deal of information. There is no doubt about that. But torture seldom yields the type of information we want. No 1, the United States works in a criminal justice system that will not allow someone to go to jail, unless they are presented
with evidence. That evidence is not admissible if it is coerced. Information gathered during torture is not admissible and is not going to be used in a court to prosecute any of these people. Two, the information we get is very likely to be tainted, is very likely to be wrong, because people want the pain to stop. They are willing to give you any information regardless of validity.
KEYES: Well, if we are faced with that kind of a situation, what I hear you saying at a very practical level is that the argument that this might somehow be necessary, and usually it's in a situation where you are faced with the possibility of a threat that would take out thousands of lives. You have captured someone, and the clock is ticking and you really need to do something that is going to give you information that will prevent this. But if what I hear you saying is correct, it wouldn't necessarily be reliable information that we get.
WHITCOMB: No, not only would it not necessarily be reliable, it oftentimes is not reliable. And I think most of the people who espouse terrorism do so because they see it as an easy means to an end, where they have very little information about how torture actually works and about what kind of information comes from torture. When they look into it, it's much more difficult to get information out of torture — valid information than virtually anyone thinks.
KEYES: Well, let me ask you a question then about our role, because I see us as having been in the vanguard of a lot of these efforts to push back this dark practice and to get folks to agree that it wasn't going to be in any sense an ordinary part, even of the practices in warfare. What happens if we routinize and establish legal procedures that seem in these circumstances to sanction the resort to torture. What affect do you think that's going to have?
WHITCOMB: Well, I would argue that there are no legal justifications for torture. Nothing in the Constitution allows you to do that. And it just doesn't work. I don't think we are going to get to that point, because I think we have to step back and understand that we live in unusual times, not unique times, but unusual times. We have been through war before. We have been through a revolutionary war, a civil war, a world war in this country, and we remain the strongest, most free nation in the world, because of the basic tenets of freedom that we hold so dearly. One of those is we don't take people off the street, move them into a dark room and torture them. It is not something that really is going to work in America on a practical level, but it's not something that we Americans really need to go to.
KEYES: Christopher, thank you so much...
WHITCOMB: Thanks, Alan.
KEYES: ... for joining us tonight to share your perspective and understanding you have, not only from your study, but from your own life and work, the kinds of things that can make effective contributions to our security.
Next, we're going to talk about this issue with some folks just like you, people who are coming at it from the point of view of decent conscience in the context of our ordinary life, as we confront these kinds of extraordinary possibilities. And later on, I want to share with you a personal note about the Super Bowl game last night. Yes, indeed, I was watching, and I think it really, in some ways, not only was it a great victory, but in other respects deeply moved my heart. But first, does this make sense? I remember talking to you a little while ago about the fact that the Bush administration was pushing for added dollars in order to promote and encourage people who are on welfare to get married. Well, now it turns out that a whole group of folks pushing from the opposite direction are saying that it would be a horrible disaster, and that marriage makes no contribution to the fight against poverty, and that these dollars should not be used to try to support people in an effort like this. You know, an amazing thing is, it turns out that you only have to do three things if you want to stay out of poverty: finish high school, get married and stay married, get a job and keep a job. Now, don't you think
it makes sense to help people do all three, rather than support a government system that has broken up marriage and destroyed it? Do you think that in point of fact we should be opposing the decisions that people make to try to regularize their married life? Does this make sense?
(COMMERCIAL BREAK)
KEYES: Welcome back to MAKING SENSE. Tonight, we are talking about the difficult and sensitive issue of torture. And the fact that some folks have raised this as something that we might have to resort to and even regularize, legalize, make routine in the context of our war against terrorism. Right now, I am joined by some people just like you on a segment of the program where we try to look at these issues from our varying perspectives, but really with a dose of common sense. Before, of course, I join in debate, Alan Dershowitz, joining me in that effort to try to understand this is in a common sense.
Well, we have Robert Steck, a Vietnam veteran, James Durst, a retired World War II and Korean War veteran, and Elizabeth Strott, a law student at American University — welcome to MAKING SENSE.
The first question I want to put on the table. You have heard me talk about this a little bit in the context of the history and background of it. You listened to Christopher Whitcomb lay before us a little bit of the context in which this issue is arising. Is it, in fact, the case that there might be times, that there are times, do you think, when something like torture is a necessary recourse? Do you buy this argument? What do you think, Robert? ROBERT STECK, VIETNAM VETERAN: I do not buy the argument. I think Whitcomb had it absolutely right. First of all, the information you get is not trustworthy. Secondly, there are better ways to get it. Third, although I think there is a resistance to engaging in torture in the first instance, over a period of time torture, when it starts to get practiced routinely, becomes something more than getting information. It's a matter of oppressing other populations. It's a matter of taking out your anger and so on. That's the kind of thing that happened with the French in Algeria. That has happened to some extent with Americans or South Vietnamese troops certainly in Vietnam. So I think it's a very dangerous place to start down, and I don't think there is any reason why we have to start down that at all.
ELIZABETH STROTT, AMERICAN UNIVERSITY STUDENT: I agree. I think it's a very dangerous precedent to set in that many people often don't — tell the things that we are looking to find out by torture. There are people have been coerced many times to give false confessions for crimes that they didn't commit. And I think that the end that we are trying to get don't necessarily justify torture.
KEYES: James, what do you think?
JAMES DURST, WWII VETERAN: Well, I think first of all, we are at war. And when you are at war, anything goes. And you can't humanize war, because it's inhuman by definition.
STECK: Well, I think that's a big mistake. I mean, the fact of the matter...
DURST: Well, that's what I believe and I think that there is a just cause as a last resort to use torture when nothing else will work for
information you think is critical to saving our troops or whatever.
KEYES: Well, let me lay that possibility on the table. Now, this is the one that I think is very often talked about. It is, in some ways, a hypothetical, but I think we can all of us imagine it. And I was mentioning it to Christopher. You have got a situation where you have credible information that there is a threat against one of your major cities. Let's say it's a weapon of mass destruction, and if it goes off, it's possible that not only tens of thousands, but possibly even hundreds of thousands of people will be injured and die. And you have captured somebody, who you know to be credibly connected with the planning and carrying out of this operation. And you have just got a limited amount of time, and you have got to know what the details are in an effort to stop it. Do you mean to say that even under circumstances like that we could not imagine resorting to something like torture?
STECK: It depends on — is part of your hypothetical that we know we are going to get the truth from this guy if we torture him? STROTT: I think that's part of the problem.
STECK: And if we know that, then it's counter-factual. We just heard the expert say we can't know that. And if you say we can't know that, then I say it's not effective. Not only is it not moral, it's not effective either.
KEYES: Well — go ahead.
STROTT: I was going to say that I think that that's part of the problem is we don't know that what is told to us is necessarily the truth.
KEYES: But you are in a situation, though, where your objective is to try to get the information in time to do something. You may not be absolutely certain, but in dealing with a situation, where you might be confronted with a threat that would claim the lives of tens of thousands of people. You are not going to take a chance that something that they tell you would be useful (UNINTELLIGIBLE)?
STROTT: It's also...
DURST: Of course, you should take a chance. There's no reason why not to. That's all that is left to do.
STECK: Well, there might be something...
DURST: So you might be a winner.
STECK: It's something that might be a winner, but it might also be misleading information. I mean, the point is, as Whitcomb was saying, there's lots of better ways to try to get the right kind of information. Now, if you are saying, well, we know that what we will get from torture will be true, and it will save thousands or millions of people, then that seems to be a slam dunk, unless you are like a complete purist in morality as sort of a continuum squared, then you have to look at consequences.
DURST: And I would agree with that, but that seems to me...
KEYES: Elizabeth?
STROTT: I think it's also scary in the sense that if this happens and our government lawfully says torture is OK, then what scares me is the potential for our American citizens abroad either being kidnapped, like the “Wall Street Journal” reporter, or our military men — what's going to happen to them?
KEYES: Well, let's stop there, because that is very interesting, in terms of whether or not that would inspire even greater threats against our
people. But you mentioned an interesting possibility and is the one that comes to up later with Alan Dershowitz. That he is making an argument — and I don't want to caricature, because it's actually not a caricature. This is a man who that I disagree with him on many things, he is a serious and intelligent guy. He looks at a situation like this, where the argument is being made that under certain circumstances, we might have to do this. And he is arguing that precisely in order to provide safeguards against abuse, we need to go to a judge and have a judge issue a warrant that then gives you the ability to go and torture somebody under these circumstances. Do you think that that is something we ought to incorporate into our legal proceedings, James?
DURST: No, I don't know. I think it depends on the immediacy that is involved. If you're in a combat situation, and you get a prisoner, and you have done everything else you can with him, and you feel confident that he has got information that you want, and you don't have anything else to do with him, I think you should use torture. And I agree with what you said.
KEYES: But basically that would be what? That you don't think that you should have to go to a judge and get permission?
DURST: Well, I don't think in the immediacy of combat there is time. I mean, there is a time factor here. You're in combat, you're out in the
field. STECK: But all of these are constantly assuming that what you get from torturing somebody is actually usable information.
(CROSSTALK)
DURST: No, you can't make that assumption, because that...
(CROSSTALK)
STECK: Well, if don't make that assumption then why do it?
KEYES: Tell me something. That would... DURST: Well, for the opportunity that you might get something. KEYES: Wouldn't that be the very question though...
DURST: You don't want to take a chance on missing it.
KEYES: Wouldn't that be the very question that a judge would have to make a judgment about? And the thing that I wonder about, we sit here talking about it. There is a question in general about whether it would be effective in getting the kind of information we want. If somebody came to you, an FBI official, a military officer, somebody like this, and they were arguing to a judge, this is necessary. It will produce the result. We then put that judge in the position of having to make a judgment that will question their viewpoint in order to safeguard us against abuse. Is that really going to happen?
I mean, we are going to have a judge going up against people who would presumably be making arguments based on what they know and circumstances that they are dealing with. And yet, we're going to ask the judge to essentially have to make a judgment that the general, the soldier, the security officer would be making. Do you think that that's a fair burden to place on the judge?
STROTT: No, I don't that — first of all, I don't think that will ever happen, and I don't think that a judge would be able to make such a decision in a time of war, where the immediacy is an issue.
STECK: Moreover, with all respect, I think that your argument with Alan Dershowitz is in part a false argument, because it rests on this assumption that somehow or other torture really is efficacious, and that sometimes you can do nothing else, and you have nothing else and you can always believe what the tortured person says. A tortured person is going to say whatever is going to cause you to stop from torturing them. Or if they are really tough, they will go to their death. I just was reading the memoirs of a guy who was the head of the intelligence for the French in Algeria. And he talks about torturing a man to death, who never spoke. And at the end of it, he says the only thing I felt was regret that he didn't talk. I thought felt no regret that I had killed him.
Now, clearly he had taken that man's life away from him, but he had also taken his own humanity away from himself. He is 83 years old right now, and he is facing trial in France. That was widespread and largely used in France, in Algeria and in other places, and the consequences, the deleterious consequences for the people who are doing it far outweigh any possible gathering of (UNINTELLIGIBLE).
STROTT: I think the problem too is...
KEYES: Just a second — go ahead, James.
DURST: Well, you are making the argument that the information you get is never good, and that's not true.
(CROSSTALK)
STECK: Because you simply don't know. The stop clock is right twice a day. The problem is when I go in and look at that stop clock, I have no idea whether this happens to be one of those two times.
KEYES: Well, see thing that as I hear you going back and forth, one, there is a general question about whether this is effective. If we assume that under certain circumstances you might make the judgment that it would be effective, I think, James, that from the point of what you are describing, it's not clear to me some judge sitting on a bench is going to have the ability to make that kind of a judgment with respect to circumstances of which he could only be given in a case a limited kind of knowledge. And finally, wouldn't we be putting the judge in the same position as the torturer in terms of the hardening effect that it might have on the conscience to make the judiciary complicit in this kind of activity?
DURST: You never make the assumption that when you get this kind of information under torture that it's accurate. You never make that. It gives you more to investigate toward the end that it may be true, because you simply don't know.
(CROSSTALK)
KEYES: But, James, this (UNINTELLIGIBLE) a problem. We are now going to say that we will violate one of our fundamental premises of human dignity — and one of the things if I may say so that strikes me about torture is that unlike some other things, torture actually requires intrinsically the violation of dignity. The whole point of torture is so to break an individual that he becomes submissive to the will of the torturer, and therefore like a nut broken open, will give up the meat of his information to you.
Can we, in fact, say that it is justifiable to put ourselves on a path that is intrinsically in opposition to our respect for human dignity on the possible chance that we will get information that would then lead us just to have some stuff we might investigate? This — I wonder especially if you regularize...
DURST: And maybe it would save another Twin Towers. You just never know.
KEYES: But if you save the building and destroy the free institutions...
DURST: But the...
KEYES: ... that in fact both the building and the people of this county are supposed to represent. What have we achieved? STECK: Yes, I think you are absolutely right about that. Jim, I want o take up another point. You keep talking about once you go to war, everything is fair. The fact of the matter is...
DURST: I didn't say fair. I just said...
STECK: You said everything is allowed basically.
DURST: That's correct.
STECK: And in war, there can't be any rules. The fact of the matter is first of all, pragmatically there are millions of people alive today because of the laws of war.
DURST: There is...
(CROSSTALK) STECK: Secondly, the fact of the — and you were talking about before maybe having a just cause. Just war theory is what all of those laws are built on. That goes back to Augustan, I think... DURST: Yes.
STECK: ... who talked about the necessity for proportionality, for nonaggression, for a constituted authority. And we have refined those. And I think those are very important, because they not only save real people's lives. They also save our own dignity, because you can't rob somebody else of their dignity without destroying your own in the process.
KEYES: Now, that is one of the points that was often made, of course, in the days of opposition to slavery when people were arguing against it. But there are certain things in human life that you can't practice without yourself being corrupted by the practice in your own understanding of your own dignity. I happen to believe that slavery, certain things, and torture being among them, are like this. They are things that, in fact, have a reaction against you as well.
Elizabeth?
STROTT: I think part of the problem too is how people define torture.
STECK: Exactly.
STROTT: And what they think it is and what they think it isn't. And I agree with what you are saying is the cracking of the nut, when you expose yourself and everything you have had — I mean, everything you believe in, because you are completely submissive. It depends on what it takes to get to that point. And to be able to allow our country to legally admit this, I just don't think that it can happen, and I don't think that it will put the United States in any sort of better light with the rest of the world.
KEYES: Well, what if I suggested that I think that there is a way we can kind of satisfy the requirements of justice, but also keep ourselves open to the possibility, an extremist that there might be a situation would make this possible. And I think our founders already thought of it. When they gave the president of the United States the power of commander in chief, and also put into his hands the pardoning power, so that if he faced extraordinary circumstances where something looked to be absolutely essential to the survival of the country but was in some sense against the existing laws and practices, he could nonetheless authorize it and then pardon the individuals who had been his agents and instruments. So that the country never really has to fear that it would be totally without recourse if something like this were absolutely necessary.
I think that they did have wisdom. They knew it couldn't be made routine, but they left us in a position where the man who is mostly or the woman who is mostly going to be responsible for our overall national security could, in fact, meet the circumstance if it really looked like it was going to be the last resort for our survival. Isn't that enough?
DURST: Except there is one thing missing in this whole argument. What is torture? How do you define it? Are you talking about beating the hell out of somebody? Breaking his arm?
KEYES: Well, that would count. That would count. DURST: Are you talking chemical torture...
KEYES: Can I propose...
DURST: ... so there is no pain?
KEYES: ... one possible example that doesn't just involve the pain? It would also cove other instances, where we're using drugs and things like that.
DURST: Exactly.
KEYES: I think that the systematic assault on human dignity with the aim of breaking the spirit and dignity of a person, so that that person will deliver up to you their will and their information...
DURST: That's right.
KEYES: ... is torture. And that it doesn't necessary mean you're just sticking things under the fingernails and so forth. It can be psychological. There are other very sophisticated means that can be used. But the basic wrong of it is that conscience assault on human dignity, and I think if we routinize that assault, we will be giving up something that is just as precious to us as our physical existence, and in fact, something that we have dedicated many lives over the course of our wars to preserving. And that is our commitment to the principle and spirit of human dignity.
Thank you all for joining me tonight — really appreciate it.
STECK: Thank you.
DURST: Thank you.
STROTT: Thank you.
KEYES: And again, I think we have vindicated the notion that as Americans, we face tough difficulties, but I think we are both smart enough and we have the common sense needed to think them through and confront them with integrity. And that's what our segment here is all about. And want to thank Robert and Elizabeth and James for joining me tonight — really appreciate your taking time.
Now next up, we have the “Bottom Line.” I will be taking on Alan Dershowitz on the subject of whether we should legalize torture.
(COMMERCIAL BREAK)
KEYES: Welcome back to MAKING SENSE.
As we've seen in the course of this show, we're living in times when the American people have to confront issues that make us very uncomfortable.
Throughout this program, this issue of torture has obviously been raising sensitivities and feelings that characterize the decent conscience of our people at the same time that we seem to be faced with harsh necessities, as we deal with threats like terrorism, that compel to us look at what might be necessary to deal with those threats.
And that's raised some issues that I think are agonizing for everyone, including folks who have been traditionally identified with a strong advocacy of civil liberties.
We have one such individual joining us today. Professor Alan Dershowitz, a Harvard University law professor and author of the new book “Shouting Fire,” which is precisely about the difficulties that are confronted by advocates of civil liberties in perilous times like our own.
Welcome to the program, Alan. Thank you for joining us tonight.
ALAN DERSHOWITZ, AUTHOR: Thank you. Good luck on your new show.
KEYES: I appreciate that.
Obviously, one of the great difficulties we confront here is that something like torture may become, in extreme situations, necessary in order to safeguard lives.
But as we're moving ahead with that, you seem to believe, and have stated in the course of the last few weeks, that it would be wise to include a judicial element, to have a judge involved and possibly issue a warrant for torture. Could you explain a little bit what that's about and why you think so?
DERSHOWITZ: Well, my goal is to try to eliminate torture or to reduce it only to those extraordinary cases where it may be necessary to mploy nonlethal torture to save hundreds or maybe even thousands of lives. And in a democracy, if you're going to do something as extraordinary as nonlethal torture, you'd better have accountability.
It's far better to do it on the books than off the books, over the radar screen than under the radar screen.
We've learned the lesson of history that when you allow practices to exist beneath the surface without accountability, they continue and they proliferate.
KEYES: Well, see, I think I would agree with you, that accountability is extremely important, but I think it's also allowed for already under our system.
Now, I think that you have a system where, right now, the president, as commander in chief, takes responsibility for what is done in these national security situations. He has the ability to authorize these kinds of extraordinary measures, and I think even to acknowledge that what governs that decision is a necessity, in extremes, not necessarily a belief that what we're dealing with here is lawful.
That's where I have the problem. I think if we start reestablishing procedures like this, we are turning the clock back, to the time before abolition of torture, putting ourselves back into a situation where in point of fact people could misunderstand what we're doing as reinstituting some lawful form of torture.
DERSHOWITZ: Well, that's exactly what I don't want to misunderstand.
But if the president is allowed to do it, it's lawful. We can't have a situation where the president is allowed to do something unlawful. Otherwise we're going to have a constitutional crisis.
The president does it. The Supreme Court says you can't do it. Congress has to intervene.
We had that when Lincoln suspended the Writ of Habeas Corpus and the Supreme Court said you can't do it.
Under our system of checks and balances, it's far better to get judicial approval in advance, and I think it would be hard pressed for a judge to give that kind of judicial approval unless we had this extraordinary case.
And by the way, the evidence obtained would not be admissible in a trial because the Fifth Amendment prohibits that. It would only be usable to prevent an upcoming and imminent terrorist act.
Judges are supposed to balance. Presidents and police officers are supposed to look at simply affecting the war, and striking an appropriate balance is the job of the judge, which is why I want the judge to do it. I believe that necessities, even emergencies, require judicial intervention and approval.
KEYES: See, I think that's all the president's responsibility. He is also given the pardoning power, so when those extraordinary circumstances, where some violation of law might be necessary, he can proceed with that violation without destroying or impugning the integrity of the law and its principles.
My problem is, let me finish, that when we issue warrants, we're basically involving the judiciary in what in and of itself, as a matter of principle, necessarily involves an abuse of human dignity.
It also means that judiciary committee, which is the resort against the abuse of executive power, becomes complicit in the decision to move ahead with that abuse, thereby becoming the judge in its own case, weakening its ability to support the advocates of civil liberty.
DERSHOWITZ: No. In the United States every issue ultimately comes before the United States Supreme Court.
So even if you had a situation where the president were to authorize torture, inevitably that case would come to the court, just like the Japanese detention in 1942 came before the court, even though it was done by executive authority.
So I don't think that the differences between us are that great.
I would like to debate this issue in advance. I'd like to us see the criteria set out in advance. I'd like to see it subject to all kinds of public debate and review.
And in the end, if we ever get to a situation — by the way, I think in a democracy, particularly one like ours where we have a system of checks and balances, that the ultimate balance has to be struck by the courts and will be struck by the courts. No matter how you do it.
DERSHOWITZ: I think that you are right, but that takes place at a level of constitutional confrontation which I think is appropriate to an issue of this kind.
The president, exercising his authority, ultimately subject to the review of both the legislature — if they think he's really abusive they can always impeach him — and the Supreme Court, in terms of individuals. But I think...
DERSHOWITZ: We're not disagreeing.
The president would have to authorize it. Even under my procedure, the president would have to authorize it.
KEYES: I have to disagree.
I understand, but I think that if we leave the judiciary in its present position, so that it is not complicit in the judgment as to necessity, we are respecting what I think is a requirement.
KEYES: It sounds like you're making the judiciary into a priesthood.
If we as a country do it, nobody is not complicit. You can't leave the judiciary out of it and say they're above it all, this is really illegal but the courts will justify it. It's either legal or not legal.
KEYES: No. I believe you can leave the judiciary...
DERSHOWITZ: If we're going to make it legal, the judges have to do it.
If the president is going to do it, he'd better have the imprimatur of the judiciary before he does it.
KEYES: I think that in point of fact this is one of those circumstances where what we talk about is so fundamentally violative of human dignity...
DERSHOWITZ: Then we shouldn't do it.
KEYES: Let me finish. That to suggest that it is lawful is a deep affront to every principle we're supposed to believe.
DERSHOWITZ: The president should never do anything that is unlawful. Never.
KEYES: But — excuse me. But if the fate of the nation depends upon, it I think asking that the society should commit suicide for the sake of such a principle is insane.
DERSHOWITZ: And Justice Jackson once said — he said the constitution is not a suicide note.
KEYES: Exactly.
DERSHOWITZ: So we can work it within the constitutional system.
What I am so opposed to about what you're saying is, you're saying the president has the right to do illegal, unlawful, unconstitutional acts, which you approve of and you would do as president...
KEYES: Precisely not.
DERSHOWITZ: No. no. Yes.
KEYES: You've got the wrong word.
DERSHOWITZ: And the court should close their eyes.
KEYES: No. I think that the president sometimes must do certain things where there are no good choices, but where a choice must be made or our survival.
DERSHOWITZ: I agree with that and I want to make those lawful.
KEYES: I do not agree, however, that we should corrupt the understanding of law so as to make the people believe that somehow something that is fundamentally and in principle a violation of human dignity can be clothed in any argument except necessity.
DERSHOWITZ: I think we live in a country of principle, and in our country of principle, if you can't justify it, if you can't make the Supreme Court accept it, you shouldn't do it.
I don't want to live in two worlds, one with the president acting outside the law and one with the Supreme Court telling us what the law is.
KEYES: Alan. Alan — what the sad thing is, is that when you are confronted by these kinds of necessities, there are certain things that may have to be done. But it seems to me if you reintroduce us to the world in which we somehow believe that it's possible to find in principle a justification for torture, and that justification would have to be necessity, then you return to us the realm where we have made necessity the governance of principle.
DERSHOWITZ: You've made a very good argument against the use of torture.
KEYES: Let me finish. Necessity, when it's applied — it is necessary for the weak to obey the strong, for the master to submit to the slave, for the oppressed to submit to the conqueror.
That kind of necessity is precisely what this country was founded to refute.
DERSHOWITZ: You're misusing the word necessity.
(CROSSTALK)
DERSHOWITZ: That's my point, but you want it to be lawful, but pretend it's unlawful.
KEYES: No.
DERSHOWITZ: You want the president to do it. You want the president to adopt principles of slavery, to do it because it's necessary, and you want to be able to stand on your high horse and say well, I want the president to do it. I would do it if I were president. But it's wrong and it's unacceptable.
It's that kind of schizophrenic, off the book distinction between what we will do and what it is right to do that gave Richard Nixon the right to
do what he did, in his mind, that gave others and other tyrants the right to do what they wanted to do.
We live under the rule of law and if the Supreme Court won't validate it, the president should not do it. Case closed.
KEYES: Not case closed, because what you are suggesting is, is that in order to meet the requirements of necessity, we must corrupt in principle our understanding of law and rights...
DERSHOWITZ: Then we shouldn't do it. Then we shouldn't do it, if we can't justify it.
KEYES: Let me finish. There are certain things, even in our own ordinary lives, that it might be necessary to do. There are times when it might be necessary to tolerate the death of an innocent person so that thousands of others might be able to survive.
I don't think anybody in decent conscience would ever want to suggest that that was right and lawful to do.
DERSHOWITZ: I would never justify that. I wouldn't allow the president to do that.
KEYES: Even when such things are necessary, they are not right. And by remembering that distinction, it means that yes, war, necessity, other things that come along...
DERSHOWITZ: No, no. War is right. That's the principle of just wars, is something we have worked on for hundreds of years.
KEYES: War and necessity may sometimes require that individuals take steps that are contrary to conscience. What I suggest you are doing is corrupting the principles that allow us to recognize in conscience the distinction between right and wrong.
DERSHOWITZ: No, you corrupt. Now let me have my point.
KEYES: And making the courts complicit in that distinction.
DERSHOWITZ: Absolutely. I want the courts complicit it in any distinction, because what you're saying is sometimes it's right to do the wrong thing. And what I'm saying is, principle can never be made so absolute as to permit us to do something and yet say it's wrong, that the president can do it out of necessity, and the courts should say he's wrong.
KEYES: You have misunderstood.
DERSHOWITZ: No, I don't think I've misunderstood.
KEYES: Yeah, you have.
DERSHOWITZ: I understand very clearly what you said. You said the president should do it.
KEYES: Because I have never said that it is right. Excuse me.
DERSHOWITZ: But you would do it, wouldn't you? Wouldn't you do it, if you were president?
KEYES: Alan, let me finish — I have never said that it is right. I have said that there are times when it is necessary.
DERSHOWITZ: I say law grows out of necessity. Rights grow out of wrongs. We must adapt the law and rights to include necessities, not to have a ruling of necessity knows no law and whole governmental actions existing outside the law.
That is an invitation to tyranny. That's an invitation to using necessity by presidents to justify doing what they think is necessary, but which is not right. I want every president to justify it by reference to what is right.
KEYES: What you are in effect doing is suggesting that in those circumstances where there is only an evil choice, we should allow that principle of evil to become a principle of law for us, a principle of organization that we should make part of our institution.
DERSHOWITZ: No, we should recognize tragic choices and that...
KEYES: I think, in point of fact, when we face the necessity of making tragic judgments, choices of evil, we must nonetheless preserve our respect for law in principle and the integrity of that element of our system, the judiciary, which is supposed to preserve our respect for those principles. And here we destroy the integrity of that set of institutions.
DERSHOWITZ: I completely agree, and a judiciary that deserves respect is a judiciary that is capable of handling any crisis. Any crisis.
KEYES: Alan — Alan, thank you. I appreciate you joining us today.
DERSHOWITZ: Thank you.
KEYES: I think we obviously are in the face of the kind of disagreement that arises because we are in fact a people of conscience, trying to find a way that is consistent with our principles to move forward to meet the necessities that we face.
I want to thank Alan Dershowitz once again for joining us tonight and for sharing his thoughts and view points.
DERSHOWITZ: Thank you.
KEYES: We have a difference here, my friends, but I think it's time that as a people, we confronted the reality that the difference between Alan Dershowitz and myself doesn't reflect some ideological combat. What it reflects right now is the hard place that the American people are in. And it's a place that we as a people must confront with integrity if we are to survive in freedom this challenge to our security. Next, I'll be up to hear what's on your mind and then we'll be taking some time for me to share with you a little personal thought about the Super Bowl we saw on Sunday. It was sure exciting, but even more than that.
(COMMERCIAL BREAK)
KEYES: Welcome back to MAKING SENSE.
Now we're going to go to your mind and take a look at the phone calls and e-mails that you have been sending in.
First up today, let's see, it's Josh in Virginia. Welcome to MAKING SENSE, Josh.
JOSH: Well, thank you, Alan.
I'd like to point out as a Naval officer, we've trained on these issues and I feel that both you and Alan Dershowitz have kind of strayed from the key point, that these are time-critical decisions that have to be made in the heat of battle, and I truly believe that neither the president and especially not a judge sitting miles away, can make these time-critical decisions.
These have to be left up to the troops on the field, and they have to face the full consequence of law, with any slim hope of a pardon, if they turn out to be correct.
KEYES: Well, see, I think you're right. They're time-critical judgments. But in all of these different areas, the president bears ultimate responsibility, and can establish the kind of procedures that have to be followed in order to make sure that these judgments are being made in a way that respects the requirements of our own principles and conscience, at the same time that we meet our security requirements.
So when we talk about the president in that context, we're really talking about his responsibility to set the terms on which the soldiers and the folks in the executive branch will act, because you're exactly right. He would have to establish regular procedures for this, and that's what we're talking about in terms of his responsibility.
Let's go to Matt in Indiana. Matt, welcome to MAKING SENSE.
MATT: Ambassador, it is a pleasure to speak with you.
Listen, since drugs are not painful, they're even considered to be comfortable, what does the United States think, and what does the Geneva Convention think, about using drugs or pharmaceuticals in interrogation of these prisoners?
KEYES: Well, see, I think the thing we have to keep in mind, and some folks forget, is that we think of torture as if it's just about pain. And actually it's more than that.
I mean, there are all different kinds of tortures and the ultimate objective of the torture is really one that has to do with producing a psychological result, and so a lot of these other methods are included under the rubric of torture.
Let's go to Patrick in California. Welcome to MAKING SENSE.
PATRICK: Yes. Hello, Alan. Hi.
One of the things that I was thinking of was the psychological warfare factor, as if these people are not going to want to turn themselves in or give up if they know they're going to be tortured, just like in Vietnam or whatever.
American troops are not going to want to give up because they know that the Vietnamese may possibly torture them.
So obviously you will fight a lot harder, knowing that there's a possibility that you or your buddy are going to get tortured.
KEYES: Well, I think you make a valid point.
It's also one of the reasons why I think most folks, and that would be true even between Alan Dershowitz and myself, are looking at something like this as something that would really be an extraordinary thing done in extremes rather than something that would be a routine part of our behavior.
We would surely be debasing ourselves if we let that happen.
Now let's take a look at some of your e-mails.
Mark writes about our show on tolerance. He says, “Tolerance in the schools isn't about teaching children to accept homosexuality, it's about teaching them to see homosexuals as fellow human beings, even if their religion agrees with their lifestyle. To each otherwise is to promote violence.”
I think that that's true, but the point is, do you have to teach acceptance of homosexuality in order to see someone as a human being? I
hardly think so.
We really appreciate all your participation. Your e-mails, your phone calls and of course the fact that you gather to watch the show every night. I want to thank you for sharing your mind with me.
Next, I'll share a personal note with you about the Super Bowl and what I think it meant to us in this time for our country.
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Spirituality, faith and democracy are the cornerstones of our country. We are all patriots, and tonight the Patriots are world champions.
(END VIDEO CLIP)
KEYES: You know, I think that that exemplified the very special nature of the Super Bowl this year.
They say that you can't see the spirit of a people, but Ithink over the course of the days and weeks since the terrible attack on September 11, we have surely seen many times the spirit of the American people, and Ithink we saw it at that Super Bowl game, in the words that were spoken by Robert Kraft and the wonderful play at the end of the game, in the toughness that was shown in the face of adversity.
That's America, my friends.
That's my sense of it. Lester Holt is up next. See you tomorrow.
Tonight we are going to tackle a difficult and uncomfortable subject: torture. It comes up in the context, of course, in our war against terrorism, of our capture of terrorists and of the need to cull from them the kind of information that can help us to deal with possible future terrorist attacks, to identify and root out the cells and networks of terrorism around the world. These are pieces of information that could be vital to us in terms of the survival of people just like you and me. This is a threat that strikes us very close to home, as we tragically saw in New York City.
And so, in the context of the war against terrorism, as Americans, we have had to deal and are having to deal with some very touchy and uncomfortable subjects. We are, after all, a decent people. We are committed to ideas and ideals of human dignity that have been hard won for us over the course of the decades and centuries of our history as a people. We have stood before the world against the abuses that have been practiced by tyrants and totalitarians down through the decades. Throughout the 20th century, we were, in fact, the champions of those who stood against the practice of torture and other abuses of human dignity and helped to produce the kind of understanding, the conventions, the international agreements that have pretty much vanished from any acceptable practice the use of torture. And that we now face in the context of this terrible terrorist threat the possibility that we, ourselves, may be forced by circumstances to resort to the very abuse that we have opposed. This poses a painful issue for all of us I would think of decent conscience. And I heard not long ago that Alan Dershowitz, renowned as one of the champions of civil liberties in this country, and was recommending that we establish a procedure that would actually give a lawful coloration to the practice of terrorism, because we are faced with the harsh necessity that we might have to deal with it.
Well, Alan Dershowitz and I are going to square off later on in the program on that very subject. But before we get to it, we'd like to follow the usual procedure here, because you know we're not just about debating. We are also about trying to understand the difficult issues that face us starting with some basic facts about how we got to where we are, and where, in fact, we stand today with respect to an issue like torture.
Joining us to help us understand this issue is Christopher Whitcomb. He is a former FBI agent. He is somebody who has had to face the realities of some of these tough choices in the field. He has written extensively on this and other subjects that have to do with the actual work of enforcing and maintaining our security, and he is currently an MSNBC analyst — welcome to MAKING SENSE, Christopher. Thank you for joining us.
CHRISTOPHER WHITCOMB, FMR. FBI AGENT: Thanks, Alan.
KEYES: Really appreciate it. Could you give us a sense — first of let's look back just very briefly at the history of this question. And for the longest time in the history of humanity, torture was pretty much a regular practice. How have we reached a time in our world today when it is not really accepted as a legitimate recourse and even in the context of war? How did that come about?
WHITCOMB: Well, I would like to say that humanity has evolved to a point, where we no longer feel a need to torture. That we have developed other techniques, and we have developed the self conscious, where we can look back and say, this worked in the past only because we allowed it to work. That we didn't search for something better. But I think really it's not a humanity issue. It's an American issue. I think that America, and primarily Western European nations, have strayed from torture, whereas many countries in the developing world still rely on torture, not just in times of war, but also as a legitimate law enforcement mechanism as well. KEYES: Now, we have been successful over the course of the latter decades of the 20th century of putting in place certain conventions and international understandings that supposedly stigmatize the practice of torture. Is that not correct?
WHITCOMB: No, we have. There is no doubt about it. But I taught interrogation at the FBI Academy, and it was interesting to see people come in from other countries around the world. We would make our pitch, the FBI pitch on how interrogation can work more effectively than the use of physical torture or physical pain to coerce some sort of cooperation. And they would always laugh and say, look, you know, it's much easier to pull a cord out of a lamp, separate the ends and stick it to someone and get information that way than to sit through an interview process. And then it comes right down to it, Alan, that's not the case. It's much more credible information you get through a long-term interview interrogation process than by inflicting pain.
KEYES: Now, tell me something. Why in the context of that kind of an understanding would we be facing the argument right now that there might be some occasion on which we would need to resort to torture, which we have basically stood against as a people for decades, in the context of this war against terrorism? Is there some basis for that apprehension?
WHITCOMB: Yes, the basis is ease. That people see this as an easy solution. If we face this grand threat, this faceless terrorist threat, isn't it easier to go torture the information out of someone and be done with it? They are willing to fly planes into the World Trade Center and the Pentagon. Isn't it just as easy for us to take this same sort of mentality to them, use torture to coerce information and really play them at their own game? We can't do that.
KEYES: Well, but if what you have just observed is correct, though, is this a kind of means that is, in fact, going to produce information that can advance our intelligence, give us the kind of accurate information we need? I mean, what are the prospects that it will yield the kind of results that would actually contribute to our security?
WHITCOMB: Look, torture will yield a great deal of information. There is no doubt about that. But torture seldom yields the type of information we want. No 1, the United States works in a criminal justice system that will not allow someone to go to jail, unless they are presented
with evidence. That evidence is not admissible if it is coerced. Information gathered during torture is not admissible and is not going to be used in a court to prosecute any of these people. Two, the information we get is very likely to be tainted, is very likely to be wrong, because people want the pain to stop. They are willing to give you any information regardless of validity.
KEYES: Well, if we are faced with that kind of a situation, what I hear you saying at a very practical level is that the argument that this might somehow be necessary, and usually it's in a situation where you are faced with the possibility of a threat that would take out thousands of lives. You have captured someone, and the clock is ticking and you really need to do something that is going to give you information that will prevent this. But if what I hear you saying is correct, it wouldn't necessarily be reliable information that we get.
WHITCOMB: No, not only would it not necessarily be reliable, it oftentimes is not reliable. And I think most of the people who espouse terrorism do so because they see it as an easy means to an end, where they have very little information about how torture actually works and about what kind of information comes from torture. When they look into it, it's much more difficult to get information out of torture — valid information than virtually anyone thinks.
KEYES: Well, let me ask you a question then about our role, because I see us as having been in the vanguard of a lot of these efforts to push back this dark practice and to get folks to agree that it wasn't going to be in any sense an ordinary part, even of the practices in warfare. What happens if we routinize and establish legal procedures that seem in these circumstances to sanction the resort to torture. What affect do you think that's going to have?
WHITCOMB: Well, I would argue that there are no legal justifications for torture. Nothing in the Constitution allows you to do that. And it just doesn't work. I don't think we are going to get to that point, because I think we have to step back and understand that we live in unusual times, not unique times, but unusual times. We have been through war before. We have been through a revolutionary war, a civil war, a world war in this country, and we remain the strongest, most free nation in the world, because of the basic tenets of freedom that we hold so dearly. One of those is we don't take people off the street, move them into a dark room and torture them. It is not something that really is going to work in America on a practical level, but it's not something that we Americans really need to go to.
KEYES: Christopher, thank you so much...
WHITCOMB: Thanks, Alan.
KEYES: ... for joining us tonight to share your perspective and understanding you have, not only from your study, but from your own life and work, the kinds of things that can make effective contributions to our security.
Next, we're going to talk about this issue with some folks just like you, people who are coming at it from the point of view of decent conscience in the context of our ordinary life, as we confront these kinds of extraordinary possibilities. And later on, I want to share with you a personal note about the Super Bowl game last night. Yes, indeed, I was watching, and I think it really, in some ways, not only was it a great victory, but in other respects deeply moved my heart. But first, does this make sense? I remember talking to you a little while ago about the fact that the Bush administration was pushing for added dollars in order to promote and encourage people who are on welfare to get married. Well, now it turns out that a whole group of folks pushing from the opposite direction are saying that it would be a horrible disaster, and that marriage makes no contribution to the fight against poverty, and that these dollars should not be used to try to support people in an effort like this. You know, an amazing thing is, it turns out that you only have to do three things if you want to stay out of poverty: finish high school, get married and stay married, get a job and keep a job. Now, don't you think
it makes sense to help people do all three, rather than support a government system that has broken up marriage and destroyed it? Do you think that in point of fact we should be opposing the decisions that people make to try to regularize their married life? Does this make sense?
(COMMERCIAL BREAK)
KEYES: Welcome back to MAKING SENSE. Tonight, we are talking about the difficult and sensitive issue of torture. And the fact that some folks have raised this as something that we might have to resort to and even regularize, legalize, make routine in the context of our war against terrorism. Right now, I am joined by some people just like you on a segment of the program where we try to look at these issues from our varying perspectives, but really with a dose of common sense. Before, of course, I join in debate, Alan Dershowitz, joining me in that effort to try to understand this is in a common sense.
Well, we have Robert Steck, a Vietnam veteran, James Durst, a retired World War II and Korean War veteran, and Elizabeth Strott, a law student at American University — welcome to MAKING SENSE.
The first question I want to put on the table. You have heard me talk about this a little bit in the context of the history and background of it. You listened to Christopher Whitcomb lay before us a little bit of the context in which this issue is arising. Is it, in fact, the case that there might be times, that there are times, do you think, when something like torture is a necessary recourse? Do you buy this argument? What do you think, Robert? ROBERT STECK, VIETNAM VETERAN: I do not buy the argument. I think Whitcomb had it absolutely right. First of all, the information you get is not trustworthy. Secondly, there are better ways to get it. Third, although I think there is a resistance to engaging in torture in the first instance, over a period of time torture, when it starts to get practiced routinely, becomes something more than getting information. It's a matter of oppressing other populations. It's a matter of taking out your anger and so on. That's the kind of thing that happened with the French in Algeria. That has happened to some extent with Americans or South Vietnamese troops certainly in Vietnam. So I think it's a very dangerous place to start down, and I don't think there is any reason why we have to start down that at all.
ELIZABETH STROTT, AMERICAN UNIVERSITY STUDENT: I agree. I think it's a very dangerous precedent to set in that many people often don't — tell the things that we are looking to find out by torture. There are people have been coerced many times to give false confessions for crimes that they didn't commit. And I think that the end that we are trying to get don't necessarily justify torture.
KEYES: James, what do you think?
JAMES DURST, WWII VETERAN: Well, I think first of all, we are at war. And when you are at war, anything goes. And you can't humanize war, because it's inhuman by definition.
STECK: Well, I think that's a big mistake. I mean, the fact of the matter...
DURST: Well, that's what I believe and I think that there is a just cause as a last resort to use torture when nothing else will work for
information you think is critical to saving our troops or whatever.
KEYES: Well, let me lay that possibility on the table. Now, this is the one that I think is very often talked about. It is, in some ways, a hypothetical, but I think we can all of us imagine it. And I was mentioning it to Christopher. You have got a situation where you have credible information that there is a threat against one of your major cities. Let's say it's a weapon of mass destruction, and if it goes off, it's possible that not only tens of thousands, but possibly even hundreds of thousands of people will be injured and die. And you have captured somebody, who you know to be credibly connected with the planning and carrying out of this operation. And you have just got a limited amount of time, and you have got to know what the details are in an effort to stop it. Do you mean to say that even under circumstances like that we could not imagine resorting to something like torture?
STECK: It depends on — is part of your hypothetical that we know we are going to get the truth from this guy if we torture him? STROTT: I think that's part of the problem.
STECK: And if we know that, then it's counter-factual. We just heard the expert say we can't know that. And if you say we can't know that, then I say it's not effective. Not only is it not moral, it's not effective either.
KEYES: Well — go ahead.
STROTT: I was going to say that I think that that's part of the problem is we don't know that what is told to us is necessarily the truth.
KEYES: But you are in a situation, though, where your objective is to try to get the information in time to do something. You may not be absolutely certain, but in dealing with a situation, where you might be confronted with a threat that would claim the lives of tens of thousands of people. You are not going to take a chance that something that they tell you would be useful (UNINTELLIGIBLE)?
STROTT: It's also...
DURST: Of course, you should take a chance. There's no reason why not to. That's all that is left to do.
STECK: Well, there might be something...
DURST: So you might be a winner.
STECK: It's something that might be a winner, but it might also be misleading information. I mean, the point is, as Whitcomb was saying, there's lots of better ways to try to get the right kind of information. Now, if you are saying, well, we know that what we will get from torture will be true, and it will save thousands or millions of people, then that seems to be a slam dunk, unless you are like a complete purist in morality as sort of a continuum squared, then you have to look at consequences.
DURST: And I would agree with that, but that seems to me...
KEYES: Elizabeth?
STROTT: I think it's also scary in the sense that if this happens and our government lawfully says torture is OK, then what scares me is the potential for our American citizens abroad either being kidnapped, like the “Wall Street Journal” reporter, or our military men — what's going to happen to them?
KEYES: Well, let's stop there, because that is very interesting, in terms of whether or not that would inspire even greater threats against our
people. But you mentioned an interesting possibility and is the one that comes to up later with Alan Dershowitz. That he is making an argument — and I don't want to caricature, because it's actually not a caricature. This is a man who that I disagree with him on many things, he is a serious and intelligent guy. He looks at a situation like this, where the argument is being made that under certain circumstances, we might have to do this. And he is arguing that precisely in order to provide safeguards against abuse, we need to go to a judge and have a judge issue a warrant that then gives you the ability to go and torture somebody under these circumstances. Do you think that that is something we ought to incorporate into our legal proceedings, James?
DURST: No, I don't know. I think it depends on the immediacy that is involved. If you're in a combat situation, and you get a prisoner, and you have done everything else you can with him, and you feel confident that he has got information that you want, and you don't have anything else to do with him, I think you should use torture. And I agree with what you said.
KEYES: But basically that would be what? That you don't think that you should have to go to a judge and get permission?
DURST: Well, I don't think in the immediacy of combat there is time. I mean, there is a time factor here. You're in combat, you're out in the
field. STECK: But all of these are constantly assuming that what you get from torturing somebody is actually usable information.
(CROSSTALK)
DURST: No, you can't make that assumption, because that...
(CROSSTALK)
STECK: Well, if don't make that assumption then why do it?
KEYES: Tell me something. That would... DURST: Well, for the opportunity that you might get something. KEYES: Wouldn't that be the very question though...
DURST: You don't want to take a chance on missing it.
KEYES: Wouldn't that be the very question that a judge would have to make a judgment about? And the thing that I wonder about, we sit here talking about it. There is a question in general about whether it would be effective in getting the kind of information we want. If somebody came to you, an FBI official, a military officer, somebody like this, and they were arguing to a judge, this is necessary. It will produce the result. We then put that judge in the position of having to make a judgment that will question their viewpoint in order to safeguard us against abuse. Is that really going to happen?
I mean, we are going to have a judge going up against people who would presumably be making arguments based on what they know and circumstances that they are dealing with. And yet, we're going to ask the judge to essentially have to make a judgment that the general, the soldier, the security officer would be making. Do you think that that's a fair burden to place on the judge?
STROTT: No, I don't that — first of all, I don't think that will ever happen, and I don't think that a judge would be able to make such a decision in a time of war, where the immediacy is an issue.
STECK: Moreover, with all respect, I think that your argument with Alan Dershowitz is in part a false argument, because it rests on this assumption that somehow or other torture really is efficacious, and that sometimes you can do nothing else, and you have nothing else and you can always believe what the tortured person says. A tortured person is going to say whatever is going to cause you to stop from torturing them. Or if they are really tough, they will go to their death. I just was reading the memoirs of a guy who was the head of the intelligence for the French in Algeria. And he talks about torturing a man to death, who never spoke. And at the end of it, he says the only thing I felt was regret that he didn't talk. I thought felt no regret that I had killed him.
Now, clearly he had taken that man's life away from him, but he had also taken his own humanity away from himself. He is 83 years old right now, and he is facing trial in France. That was widespread and largely used in France, in Algeria and in other places, and the consequences, the deleterious consequences for the people who are doing it far outweigh any possible gathering of (UNINTELLIGIBLE).
STROTT: I think the problem too is...
KEYES: Just a second — go ahead, James.
DURST: Well, you are making the argument that the information you get is never good, and that's not true.
(CROSSTALK)
STECK: Because you simply don't know. The stop clock is right twice a day. The problem is when I go in and look at that stop clock, I have no idea whether this happens to be one of those two times.
KEYES: Well, see thing that as I hear you going back and forth, one, there is a general question about whether this is effective. If we assume that under certain circumstances you might make the judgment that it would be effective, I think, James, that from the point of what you are describing, it's not clear to me some judge sitting on a bench is going to have the ability to make that kind of a judgment with respect to circumstances of which he could only be given in a case a limited kind of knowledge. And finally, wouldn't we be putting the judge in the same position as the torturer in terms of the hardening effect that it might have on the conscience to make the judiciary complicit in this kind of activity?
DURST: You never make the assumption that when you get this kind of information under torture that it's accurate. You never make that. It gives you more to investigate toward the end that it may be true, because you simply don't know.
(CROSSTALK)
KEYES: But, James, this (UNINTELLIGIBLE) a problem. We are now going to say that we will violate one of our fundamental premises of human dignity — and one of the things if I may say so that strikes me about torture is that unlike some other things, torture actually requires intrinsically the violation of dignity. The whole point of torture is so to break an individual that he becomes submissive to the will of the torturer, and therefore like a nut broken open, will give up the meat of his information to you.
Can we, in fact, say that it is justifiable to put ourselves on a path that is intrinsically in opposition to our respect for human dignity on the possible chance that we will get information that would then lead us just to have some stuff we might investigate? This — I wonder especially if you regularize...
DURST: And maybe it would save another Twin Towers. You just never know.
KEYES: But if you save the building and destroy the free institutions...
DURST: But the...
KEYES: ... that in fact both the building and the people of this county are supposed to represent. What have we achieved? STECK: Yes, I think you are absolutely right about that. Jim, I want o take up another point. You keep talking about once you go to war, everything is fair. The fact of the matter is...
DURST: I didn't say fair. I just said...
STECK: You said everything is allowed basically.
DURST: That's correct.
STECK: And in war, there can't be any rules. The fact of the matter is first of all, pragmatically there are millions of people alive today because of the laws of war.
DURST: There is...
(CROSSTALK) STECK: Secondly, the fact of the — and you were talking about before maybe having a just cause. Just war theory is what all of those laws are built on. That goes back to Augustan, I think... DURST: Yes.
STECK: ... who talked about the necessity for proportionality, for nonaggression, for a constituted authority. And we have refined those. And I think those are very important, because they not only save real people's lives. They also save our own dignity, because you can't rob somebody else of their dignity without destroying your own in the process.
KEYES: Now, that is one of the points that was often made, of course, in the days of opposition to slavery when people were arguing against it. But there are certain things in human life that you can't practice without yourself being corrupted by the practice in your own understanding of your own dignity. I happen to believe that slavery, certain things, and torture being among them, are like this. They are things that, in fact, have a reaction against you as well.
Elizabeth?
STROTT: I think part of the problem too is how people define torture.
STECK: Exactly.
STROTT: And what they think it is and what they think it isn't. And I agree with what you are saying is the cracking of the nut, when you expose yourself and everything you have had — I mean, everything you believe in, because you are completely submissive. It depends on what it takes to get to that point. And to be able to allow our country to legally admit this, I just don't think that it can happen, and I don't think that it will put the United States in any sort of better light with the rest of the world.
KEYES: Well, what if I suggested that I think that there is a way we can kind of satisfy the requirements of justice, but also keep ourselves open to the possibility, an extremist that there might be a situation would make this possible. And I think our founders already thought of it. When they gave the president of the United States the power of commander in chief, and also put into his hands the pardoning power, so that if he faced extraordinary circumstances where something looked to be absolutely essential to the survival of the country but was in some sense against the existing laws and practices, he could nonetheless authorize it and then pardon the individuals who had been his agents and instruments. So that the country never really has to fear that it would be totally without recourse if something like this were absolutely necessary.
I think that they did have wisdom. They knew it couldn't be made routine, but they left us in a position where the man who is mostly or the woman who is mostly going to be responsible for our overall national security could, in fact, meet the circumstance if it really looked like it was going to be the last resort for our survival. Isn't that enough?
DURST: Except there is one thing missing in this whole argument. What is torture? How do you define it? Are you talking about beating the hell out of somebody? Breaking his arm?
KEYES: Well, that would count. That would count. DURST: Are you talking chemical torture...
KEYES: Can I propose...
DURST: ... so there is no pain?
KEYES: ... one possible example that doesn't just involve the pain? It would also cove other instances, where we're using drugs and things like that.
DURST: Exactly.
KEYES: I think that the systematic assault on human dignity with the aim of breaking the spirit and dignity of a person, so that that person will deliver up to you their will and their information...
DURST: That's right.
KEYES: ... is torture. And that it doesn't necessary mean you're just sticking things under the fingernails and so forth. It can be psychological. There are other very sophisticated means that can be used. But the basic wrong of it is that conscience assault on human dignity, and I think if we routinize that assault, we will be giving up something that is just as precious to us as our physical existence, and in fact, something that we have dedicated many lives over the course of our wars to preserving. And that is our commitment to the principle and spirit of human dignity.
Thank you all for joining me tonight — really appreciate it.
STECK: Thank you.
DURST: Thank you.
STROTT: Thank you.
KEYES: And again, I think we have vindicated the notion that as Americans, we face tough difficulties, but I think we are both smart enough and we have the common sense needed to think them through and confront them with integrity. And that's what our segment here is all about. And want to thank Robert and Elizabeth and James for joining me tonight — really appreciate your taking time.
Now next up, we have the “Bottom Line.” I will be taking on Alan Dershowitz on the subject of whether we should legalize torture.
(COMMERCIAL BREAK)
KEYES: Welcome back to MAKING SENSE.
As we've seen in the course of this show, we're living in times when the American people have to confront issues that make us very uncomfortable.
Throughout this program, this issue of torture has obviously been raising sensitivities and feelings that characterize the decent conscience of our people at the same time that we seem to be faced with harsh necessities, as we deal with threats like terrorism, that compel to us look at what might be necessary to deal with those threats.
And that's raised some issues that I think are agonizing for everyone, including folks who have been traditionally identified with a strong advocacy of civil liberties.
We have one such individual joining us today. Professor Alan Dershowitz, a Harvard University law professor and author of the new book “Shouting Fire,” which is precisely about the difficulties that are confronted by advocates of civil liberties in perilous times like our own.
Welcome to the program, Alan. Thank you for joining us tonight.
ALAN DERSHOWITZ, AUTHOR: Thank you. Good luck on your new show.
KEYES: I appreciate that.
Obviously, one of the great difficulties we confront here is that something like torture may become, in extreme situations, necessary in order to safeguard lives.
But as we're moving ahead with that, you seem to believe, and have stated in the course of the last few weeks, that it would be wise to include a judicial element, to have a judge involved and possibly issue a warrant for torture. Could you explain a little bit what that's about and why you think so?
DERSHOWITZ: Well, my goal is to try to eliminate torture or to reduce it only to those extraordinary cases where it may be necessary to mploy nonlethal torture to save hundreds or maybe even thousands of lives. And in a democracy, if you're going to do something as extraordinary as nonlethal torture, you'd better have accountability.
It's far better to do it on the books than off the books, over the radar screen than under the radar screen.
We've learned the lesson of history that when you allow practices to exist beneath the surface without accountability, they continue and they proliferate.
KEYES: Well, see, I think I would agree with you, that accountability is extremely important, but I think it's also allowed for already under our system.
Now, I think that you have a system where, right now, the president, as commander in chief, takes responsibility for what is done in these national security situations. He has the ability to authorize these kinds of extraordinary measures, and I think even to acknowledge that what governs that decision is a necessity, in extremes, not necessarily a belief that what we're dealing with here is lawful.
That's where I have the problem. I think if we start reestablishing procedures like this, we are turning the clock back, to the time before abolition of torture, putting ourselves back into a situation where in point of fact people could misunderstand what we're doing as reinstituting some lawful form of torture.
DERSHOWITZ: Well, that's exactly what I don't want to misunderstand.
But if the president is allowed to do it, it's lawful. We can't have a situation where the president is allowed to do something unlawful. Otherwise we're going to have a constitutional crisis.
The president does it. The Supreme Court says you can't do it. Congress has to intervene.
We had that when Lincoln suspended the Writ of Habeas Corpus and the Supreme Court said you can't do it.
Under our system of checks and balances, it's far better to get judicial approval in advance, and I think it would be hard pressed for a judge to give that kind of judicial approval unless we had this extraordinary case.
And by the way, the evidence obtained would not be admissible in a trial because the Fifth Amendment prohibits that. It would only be usable to prevent an upcoming and imminent terrorist act.
Judges are supposed to balance. Presidents and police officers are supposed to look at simply affecting the war, and striking an appropriate balance is the job of the judge, which is why I want the judge to do it. I believe that necessities, even emergencies, require judicial intervention and approval.
KEYES: See, I think that's all the president's responsibility. He is also given the pardoning power, so when those extraordinary circumstances, where some violation of law might be necessary, he can proceed with that violation without destroying or impugning the integrity of the law and its principles.
My problem is, let me finish, that when we issue warrants, we're basically involving the judiciary in what in and of itself, as a matter of principle, necessarily involves an abuse of human dignity.
It also means that judiciary committee, which is the resort against the abuse of executive power, becomes complicit in the decision to move ahead with that abuse, thereby becoming the judge in its own case, weakening its ability to support the advocates of civil liberty.
DERSHOWITZ: No. In the United States every issue ultimately comes before the United States Supreme Court.
So even if you had a situation where the president were to authorize torture, inevitably that case would come to the court, just like the Japanese detention in 1942 came before the court, even though it was done by executive authority.
So I don't think that the differences between us are that great.
I would like to debate this issue in advance. I'd like to us see the criteria set out in advance. I'd like to see it subject to all kinds of public debate and review.
And in the end, if we ever get to a situation — by the way, I think in a democracy, particularly one like ours where we have a system of checks and balances, that the ultimate balance has to be struck by the courts and will be struck by the courts. No matter how you do it.
DERSHOWITZ: I think that you are right, but that takes place at a level of constitutional confrontation which I think is appropriate to an issue of this kind.
The president, exercising his authority, ultimately subject to the review of both the legislature — if they think he's really abusive they can always impeach him — and the Supreme Court, in terms of individuals. But I think...
DERSHOWITZ: We're not disagreeing.
The president would have to authorize it. Even under my procedure, the president would have to authorize it.
KEYES: I have to disagree.
I understand, but I think that if we leave the judiciary in its present position, so that it is not complicit in the judgment as to necessity, we are respecting what I think is a requirement.
KEYES: It sounds like you're making the judiciary into a priesthood.
If we as a country do it, nobody is not complicit. You can't leave the judiciary out of it and say they're above it all, this is really illegal but the courts will justify it. It's either legal or not legal.
KEYES: No. I believe you can leave the judiciary...
DERSHOWITZ: If we're going to make it legal, the judges have to do it.
If the president is going to do it, he'd better have the imprimatur of the judiciary before he does it.
KEYES: I think that in point of fact this is one of those circumstances where what we talk about is so fundamentally violative of human dignity...
DERSHOWITZ: Then we shouldn't do it.
KEYES: Let me finish. That to suggest that it is lawful is a deep affront to every principle we're supposed to believe.
DERSHOWITZ: The president should never do anything that is unlawful. Never.
KEYES: But — excuse me. But if the fate of the nation depends upon, it I think asking that the society should commit suicide for the sake of such a principle is insane.
DERSHOWITZ: And Justice Jackson once said — he said the constitution is not a suicide note.
KEYES: Exactly.
DERSHOWITZ: So we can work it within the constitutional system.
What I am so opposed to about what you're saying is, you're saying the president has the right to do illegal, unlawful, unconstitutional acts, which you approve of and you would do as president...
KEYES: Precisely not.
DERSHOWITZ: No. no. Yes.
KEYES: You've got the wrong word.
DERSHOWITZ: And the court should close their eyes.
KEYES: No. I think that the president sometimes must do certain things where there are no good choices, but where a choice must be made or our survival.
DERSHOWITZ: I agree with that and I want to make those lawful.
KEYES: I do not agree, however, that we should corrupt the understanding of law so as to make the people believe that somehow something that is fundamentally and in principle a violation of human dignity can be clothed in any argument except necessity.
DERSHOWITZ: I think we live in a country of principle, and in our country of principle, if you can't justify it, if you can't make the Supreme Court accept it, you shouldn't do it.
I don't want to live in two worlds, one with the president acting outside the law and one with the Supreme Court telling us what the law is.
KEYES: Alan. Alan — what the sad thing is, is that when you are confronted by these kinds of necessities, there are certain things that may have to be done. But it seems to me if you reintroduce us to the world in which we somehow believe that it's possible to find in principle a justification for torture, and that justification would have to be necessity, then you return to us the realm where we have made necessity the governance of principle.
DERSHOWITZ: You've made a very good argument against the use of torture.
KEYES: Let me finish. Necessity, when it's applied — it is necessary for the weak to obey the strong, for the master to submit to the slave, for the oppressed to submit to the conqueror.
That kind of necessity is precisely what this country was founded to refute.
DERSHOWITZ: You're misusing the word necessity.
(CROSSTALK)
DERSHOWITZ: That's my point, but you want it to be lawful, but pretend it's unlawful.
KEYES: No.
DERSHOWITZ: You want the president to do it. You want the president to adopt principles of slavery, to do it because it's necessary, and you want to be able to stand on your high horse and say well, I want the president to do it. I would do it if I were president. But it's wrong and it's unacceptable.
It's that kind of schizophrenic, off the book distinction between what we will do and what it is right to do that gave Richard Nixon the right to
do what he did, in his mind, that gave others and other tyrants the right to do what they wanted to do.
We live under the rule of law and if the Supreme Court won't validate it, the president should not do it. Case closed.
KEYES: Not case closed, because what you are suggesting is, is that in order to meet the requirements of necessity, we must corrupt in principle our understanding of law and rights...
DERSHOWITZ: Then we shouldn't do it. Then we shouldn't do it, if we can't justify it.
KEYES: Let me finish. There are certain things, even in our own ordinary lives, that it might be necessary to do. There are times when it might be necessary to tolerate the death of an innocent person so that thousands of others might be able to survive.
I don't think anybody in decent conscience would ever want to suggest that that was right and lawful to do.
DERSHOWITZ: I would never justify that. I wouldn't allow the president to do that.
KEYES: Even when such things are necessary, they are not right. And by remembering that distinction, it means that yes, war, necessity, other things that come along...
DERSHOWITZ: No, no. War is right. That's the principle of just wars, is something we have worked on for hundreds of years.
KEYES: War and necessity may sometimes require that individuals take steps that are contrary to conscience. What I suggest you are doing is corrupting the principles that allow us to recognize in conscience the distinction between right and wrong.
DERSHOWITZ: No, you corrupt. Now let me have my point.
KEYES: And making the courts complicit in that distinction.
DERSHOWITZ: Absolutely. I want the courts complicit it in any distinction, because what you're saying is sometimes it's right to do the wrong thing. And what I'm saying is, principle can never be made so absolute as to permit us to do something and yet say it's wrong, that the president can do it out of necessity, and the courts should say he's wrong.
KEYES: You have misunderstood.
DERSHOWITZ: No, I don't think I've misunderstood.
KEYES: Yeah, you have.
DERSHOWITZ: I understand very clearly what you said. You said the president should do it.
KEYES: Because I have never said that it is right. Excuse me.
DERSHOWITZ: But you would do it, wouldn't you? Wouldn't you do it, if you were president?
KEYES: Alan, let me finish — I have never said that it is right. I have said that there are times when it is necessary.
DERSHOWITZ: I say law grows out of necessity. Rights grow out of wrongs. We must adapt the law and rights to include necessities, not to have a ruling of necessity knows no law and whole governmental actions existing outside the law.
That is an invitation to tyranny. That's an invitation to using necessity by presidents to justify doing what they think is necessary, but which is not right. I want every president to justify it by reference to what is right.
KEYES: What you are in effect doing is suggesting that in those circumstances where there is only an evil choice, we should allow that principle of evil to become a principle of law for us, a principle of organization that we should make part of our institution.
DERSHOWITZ: No, we should recognize tragic choices and that...
KEYES: I think, in point of fact, when we face the necessity of making tragic judgments, choices of evil, we must nonetheless preserve our respect for law in principle and the integrity of that element of our system, the judiciary, which is supposed to preserve our respect for those principles. And here we destroy the integrity of that set of institutions.
DERSHOWITZ: I completely agree, and a judiciary that deserves respect is a judiciary that is capable of handling any crisis. Any crisis.
KEYES: Alan — Alan, thank you. I appreciate you joining us today.
DERSHOWITZ: Thank you.
KEYES: I think we obviously are in the face of the kind of disagreement that arises because we are in fact a people of conscience, trying to find a way that is consistent with our principles to move forward to meet the necessities that we face.
I want to thank Alan Dershowitz once again for joining us tonight and for sharing his thoughts and view points.
DERSHOWITZ: Thank you.
KEYES: We have a difference here, my friends, but I think it's time that as a people, we confronted the reality that the difference between Alan Dershowitz and myself doesn't reflect some ideological combat. What it reflects right now is the hard place that the American people are in. And it's a place that we as a people must confront with integrity if we are to survive in freedom this challenge to our security. Next, I'll be up to hear what's on your mind and then we'll be taking some time for me to share with you a little personal thought about the Super Bowl we saw on Sunday. It was sure exciting, but even more than that.
(COMMERCIAL BREAK)
KEYES: Welcome back to MAKING SENSE.
Now we're going to go to your mind and take a look at the phone calls and e-mails that you have been sending in.
First up today, let's see, it's Josh in Virginia. Welcome to MAKING SENSE, Josh.
JOSH: Well, thank you, Alan.
I'd like to point out as a Naval officer, we've trained on these issues and I feel that both you and Alan Dershowitz have kind of strayed from the key point, that these are time-critical decisions that have to be made in the heat of battle, and I truly believe that neither the president and especially not a judge sitting miles away, can make these time-critical decisions.
These have to be left up to the troops on the field, and they have to face the full consequence of law, with any slim hope of a pardon, if they turn out to be correct.
KEYES: Well, see, I think you're right. They're time-critical judgments. But in all of these different areas, the president bears ultimate responsibility, and can establish the kind of procedures that have to be followed in order to make sure that these judgments are being made in a way that respects the requirements of our own principles and conscience, at the same time that we meet our security requirements.
So when we talk about the president in that context, we're really talking about his responsibility to set the terms on which the soldiers and the folks in the executive branch will act, because you're exactly right. He would have to establish regular procedures for this, and that's what we're talking about in terms of his responsibility.
Let's go to Matt in Indiana. Matt, welcome to MAKING SENSE.
MATT: Ambassador, it is a pleasure to speak with you.
Listen, since drugs are not painful, they're even considered to be comfortable, what does the United States think, and what does the Geneva Convention think, about using drugs or pharmaceuticals in interrogation of these prisoners?
KEYES: Well, see, I think the thing we have to keep in mind, and some folks forget, is that we think of torture as if it's just about pain. And actually it's more than that.
I mean, there are all different kinds of tortures and the ultimate objective of the torture is really one that has to do with producing a psychological result, and so a lot of these other methods are included under the rubric of torture.
Let's go to Patrick in California. Welcome to MAKING SENSE.
PATRICK: Yes. Hello, Alan. Hi.
One of the things that I was thinking of was the psychological warfare factor, as if these people are not going to want to turn themselves in or give up if they know they're going to be tortured, just like in Vietnam or whatever.
American troops are not going to want to give up because they know that the Vietnamese may possibly torture them.
So obviously you will fight a lot harder, knowing that there's a possibility that you or your buddy are going to get tortured.
KEYES: Well, I think you make a valid point.
It's also one of the reasons why I think most folks, and that would be true even between Alan Dershowitz and myself, are looking at something like this as something that would really be an extraordinary thing done in extremes rather than something that would be a routine part of our behavior.
We would surely be debasing ourselves if we let that happen.
Now let's take a look at some of your e-mails.
Mark writes about our show on tolerance. He says, “Tolerance in the schools isn't about teaching children to accept homosexuality, it's about teaching them to see homosexuals as fellow human beings, even if their religion agrees with their lifestyle. To each otherwise is to promote violence.”
I think that that's true, but the point is, do you have to teach acceptance of homosexuality in order to see someone as a human being? I
hardly think so.
We really appreciate all your participation. Your e-mails, your phone calls and of course the fact that you gather to watch the show every night. I want to thank you for sharing your mind with me.
Next, I'll share a personal note with you about the Super Bowl and what I think it meant to us in this time for our country.
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Spirituality, faith and democracy are the cornerstones of our country. We are all patriots, and tonight the Patriots are world champions.
(END VIDEO CLIP)
KEYES: You know, I think that that exemplified the very special nature of the Super Bowl this year.
They say that you can't see the spirit of a people, but Ithink over the course of the days and weeks since the terrible attack on September 11, we have surely seen many times the spirit of the American people, and Ithink we saw it at that Super Bowl game, in the words that were spoken by Robert Kraft and the wonderful play at the end of the game, in the toughness that was shown in the face of adversity.
That's America, my friends.
That's my sense of it. Lester Holt is up next. See you tomorrow.