Writing yesterday in the Independent, Alan Dershowitz makes the familiar case that modern terrorism poses such an unprecedented threat to western society that the law needs to be rewritten. He argues, for example, that “we need rules even for such unpleasant practices” as “waterboarding” – or, to speak plainly, water torture. There are currently plenty of rules on interrogation in general, laid out in places like the UN Convention Against Torture, Geneva, and the extant 1992 edition of the US Army’s own Field Manual FM 34-52 on Intelligence Interrogation; it’s just that the US government doesn’t feel like following them. Dershowitz supposes that this might be moot because people suspected of contemporary terrorism “do not fit into the old, anachronistic categories” such as PoWs, and so it is unclear what it is permissible to do to them. In fact, CAT, UDHR and so on leave no possible category of human being unprotected from torture or other inhumane or degrading treatment.
Alternatively, he appears to suppose that it might be moot on the grounds that “waterboarding” is too newfangled to have been explicitly prohibited. I Am Not A Lawyer, but this seems no better an argument.
Dershowitz describes “waterboarding” as a practice that “produces a near-drowning experience but no physical after-effects”. His peculiar appeal to a lack of physical after-effects is specious, given both that the physical effects of the practice as it is being carried out are horrific, and that CAT and FM 34-52, among others, clearly state that deliberately induced psychological harm may constitute torture.
“Is [“waterboarding”] categorised as torture? I certainly think so, but the United States government apparently does not,” says Dershowitz. To portray the problem as a mere unfortunate disagreement in the absence of specific “rules” may give the impression of vitiating Dershowitz’s statement that he thinks waterboarding is torture.
Naturally, Dershowitz notes in passing that there is an “absolute law against ‘torture’”, although the fact that “torture” is in scare quotes in that phrase might be read as valorizing the Justice Department’s notorious attempted redefinitions of the word. Perhaps, on Dershowitz’s reasoning, you can invent a novel and creative form of torture, and then defend yourself on the grounds that this exact new form of torture is nowhere explicitly described and prohibited by existing law. Hey, there are no rules! It’s a “legal black hole”! Don’t blame me!
Of course, there is nothing wrong with updating rules. What may appear disingenuous is a claim that existing rules do not apply, are outmoded, simply because they do not, as no law can, foresee every detail of every possible concrete situation in which they may be broken. Luckily, Dershowitz’s justificatory hopping-around between the “unprecedented threat”, “not PoWs”, and “no rules” arguments makes it hard to be sure that this is indeed what he is saying.
Also interesting, meanwhile, is the way Dershowitz presents the claim that terrorism poses an unprecedented threat:
The period between the end of the Second World War and now has seen more profound changes in the nature of warfare than occurred from the time of Henry IV to the beginning of the First World War.
The periods are carefully chosen, leaving a lacuna between the first world war and the second (whose matériel was the first, according to the OED’s current draft account, to be christened “weapons of mass destruction”). Stipulating “the beginning of the first world war” carefully rules out tanks, for example. Even so: the second period Dershowitz cites runs from the longbow and rudimentary cannons, on the one hand, to submarines, machine guns and radio on the other. The first runs from the atomic bombs dropped on Japan, to Dershowitz’s speculations about “weapons of mass destruction in the hands of suicide terrorists with no fear of death and no home address”. Is that really a more profound change in the nature of warfare?