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Alan Dershowitz | Warming Up to Torture?    [

    Bush Signs Bill on Terror Prosecution
    By Nedra Pickler
    The Associated Press

    Tuesday 17 October 2006

    Some of the most notorious names in the war on terror are headed toward prosecution after President Bush signed a law Tuesday authorizing military trials of terrorism suspects.

    The legislation also eliminates some of the rights defendants are usually guaranteed under U.S. law, and it authorizes continued harsh interrogations of terror suspects.

    Imprisoned at Guantanamo Bay, Cuba, and awaiting trial are Khalid Sheikh Mohammed, the accused mastermind of the Sept. 11 attacks, Ramzi Binalshibh, an alleged would-be 9/11 hijacker, and Abu Zubaydah, who was believed to be a link between Osama bin Laden and many al-Qaida cells.

    "With the bill I'm about to sign, the men our intelligence officials believe orchestrated the murder of nearly 3,000 innocent people will face justice," Bush said in a White House ceremony.

    The Pentagon expects to begin pre-trial motions early next year and to begin the actual trials in the summer.

    The Supreme Court ruled in June that trying detainees in military tribunals violated U.S. and international law, so Bush urged Congress to change the law during a speech on Sept. 6 in the White House East Room attended by families of the Sept. 11, 2001, victims. He also insisted that the law authorize CIA agents to use tough - yet unspecified - methods to interrogate suspected terrorists.

    Six weeks later, after a highly publicized dispute with key Republicans over the terms of the bill, Bush signed the new law "in memory of the victims of September the 11th."

    "It is a rare occasion when a president can sign a bill he knows will save American lives," Bush said. "I have that privilege this morning."

    Civil libertarians and leading Democrats decried the law as a violation of American values. The American Civil Liberties Union said it was "one of the worst civil liberties measures ever enacted in American history." Democratic Sen. Russ Feingold of Wisconsin said, "We will look back on this day as a stain on our nation's history."

    "It allows the government to seize individuals on American soil and detain them indefinitely with no opportunity to challenge their detention in court," Feingold said. "And the new law would permit an individual to be convicted on the basis of coerced testimony and even allow someone convicted under these rules to be put to death."

    The legislation, which sets the rules for court proceedings, applies to those selected by the military for prosecution and leaves mostly unaffected the majority of the 14,000 prisoners in U.S. custody, most of whom are in Iraq. It does apply to 14 suspects who were secretly questioned by the CIA overseas and recently moved to the U.S. detention center at Guantanamo Bay.

    The swift implementation of the law is a rare bit of good news for Bush as casualties mount in Iraq in daily violence. Lawmakers are increasingly calling for a change of strategy, and political anxieties are jeopardizing Republican chances of hanging onto control of Congress.

    Bush has been criticizing Democrats who voted against the law, called the Military Commissions Act of 2006, during campaign appearances around the country. He has suggested that votes against the law show that Democrats would not protect the country from another terrorist attack.

    Republican House leaders, in a tough battle to maintain their majority, echoed those criticisms Tuesday in an attempt to get some political points out of the legislation they supported. "The Democratic plan would gingerly pamper the terrorists who plan to destroy innocent Americans' lives," House Speaker Dennis Hastert said.

    Bush noted that the law came amid dispute.

    "Over the past few months, the debate over this bill has been heated, and the questions raised can seem complex," he said. "Yet, with the distance of history, the questions will be narrowed and few: Did this generation of Americans take the threat seriously? And did we do what it takes to defeat that threat?"

    A coalition of religious groups staged a protest against the bill outside the White House, shouting "Bush is the terrorist" and "Torture is a crime." About 15 of the protesters, standing in a light rain, refused orders to move. Police arrested them one by one.

    The legislation says the president can "interpret the meaning and application" of international standards for prisoner treatment, a provision intended to allow him to authorize aggressive interrogation methods that might otherwise be seen as illegal by international courts. Bush said such measures have helped the CIA gain vital information from terror suspects and have saved American lives.

    After Bush signed the law, CIA Director Mike Hayden sent a note to employees saying it gives them "the legal clarity and legislative support necessary to continue a program that has been one of our country's most effective tools in the fight against terrorism."

    "We can be confident that our program remains - as it always has been - fully compliant with U.S. law, the Constitution and our international treaty obligations," Hayden wrote.

    The White House has said that disclosing the techniques that are used would give the enemy information to resist those techniques. White House press secretary Tony Snow said Bush would probably eventually issue an executive order that would describe his interpretation of the standards, but those documents are not usually made public.

    Snow rejected the idea that Americans should be able to see and judge the standards for themselves, particularly in the aftermath of illegal abuses at the Abu Ghraib prison.

    "The only way accountability doesn't exist is if you believe that the military is not committed to it," Snow said.

 

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    Warming Up to Torture?
    By Alan Dershowitz
    The Los Angeles Times

    Tuesday 17 October 2006

Bill Clinton's call for court-approved "torture warrants" hasn't drawn the same outcry as a similar proposal from a few years back.

    Several years ago, I provoked a storm of controversy by advocating "torture warrants" as a way of creating accountability for the use of torture in terrorism cases. I argued that if we were ever to encounter a "ticking bomb" situation in which the authorities believed that an impending terror attack could be prevented only by torturing a captured terrorist into revealing the location of the bomb, the authorities would, in fact, employ such a tactic.

    Although I personally oppose the use of torture, I recognize the reality that some forms of torture have been, are being and will continue to be used by democracies in extreme situations, regardless of what we say or what the law provides. In an effort to limit the use of torture to genuinely extreme "ticking bomb" situations, rather than allowing it to become as routine as it obviously became at Abu Ghraib, I proposed that the president or a federal judge would have to take personal responsibility for ordering its use in extraordinary situations.

    For suggesting this approach to the terrible choice of evils between torture and terrorism, I was condemned as a moral monster, labeled an advocate of torture and called a Torquemada.

    Now I see that former President Clinton has offered a similar proposal. In a recent interview on National Public Radio, Clinton was asked, as someone "who's been there," whether the president needs "the option of authorizing torture in an extreme case."

    This is what he said in response: "Look, if the president needed an option, there's all sorts of things they can do. Let's take the best case, OK. You picked up someone you know is the No. 2 aide to Osama bin Laden. And you know they have an operation planned for the United States or some European capital in the next three days. And you know this guy knows it. Right, that's the clearest example. And you think you can only get it out of this guy by shooting him full of some drugs or water-boarding him or otherwise working him over. If they really believed that that scenario is likely to occur, let them come forward with an alternate proposal.

    "We have a system of laws here where nobody should be above the law, and you don't need blanket advance approval for blanket torture. They can draw a statute much more narrowly, which would permit the president to make a finding in a case like I just outlined, and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court."

    Clinton was then asked whether he was saying there "would be more responsibility afterward for what was done." He replied: "Yeah, well, the president could take personal responsibility for it. But you do it on a case-by-case basis, and there'd be some review of it." Clinton quickly added that he doesn't know whether this ticking bomb scenario "is likely or not," but he did know that "we have erred in who was a real suspect or not."

    Clinton summarized his views in the following terms: "If they really believe the time comes when the only way they can get a reliable piece of information is to beat it out of someone or put a drug in their body to talk it out of 'em, then they can present it to the Foreign Intelligence Court, or some other court, just under the same circumstances we do with wiretaps. Post facto .

    "But I think if you go around passing laws that legitimize a violation of the Geneva Convention and institutionalize what happened at Abu Ghraib or Guantanamo, we're gonna be in real trouble."

    It is surprising that this interview with the former president has received so little attention from those who were so quick to jump all over me. Clinton goes even further than I did. He would, in extreme cases, authorize the granting of a warrant "post facto" by a specialized court, as is now the case with national security wiretaps. What I proposed is that the warrant authorization be issued before the use of extreme measures is permitted. A preliminary warrant could be issued in a manner of minutes, to be followed up by a more thorough, after-the-fact evaluation and review.

    I offered my controversial proposal as a way to stimulate debate about a difficult choice of evils. I hope that the silence following the Clinton interview does not mean the debate has ended. The problem persists. Torture will continue. Let's not stop thinking and talking about whether the evil of torture is ever a necessary evil.

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    Alan M. Dershowitz is a professor of law at Harvard. He is the author of many books, including, most recently, Preemption: A Knife that Cuts Both Ways.