Washington Post: Government Considering Torturing Terror Susp ects

[Parry, John]

To tie Israeli law back to the underlying question:  the court made clear
that torture was illegal and thus prohibited because it was not specifically
authorized by the Knesset (and, as Professor Schepple notes, the decision
leaves the Knesset free to authorize torture).  But, the court also stressed
that the necessity defense would be available after the fact for GSS
personnel charged with torture.

In other words, the court thought -- and it explicitly mentioned the
"ticking time bomb scenario" -- that some circumstances could justify
torture.  Several articles take the same position, though most are also
leery about codifying this idea.  See, for example, the symposium at 23
Israel Law Review 141 (1989).
********************************************
John T. Parry
Assistant Professor of Law
University of Pittsburgh School of Law
3900 Forbes Avenue
Pittsburgh, PA  15260
412-648-7006
parry at law.pitt.edu
********************************************

-----Original Message-----
From: Kim Lane Scheppele [mailto:kimlane at LAW.UPENN.EDU]
Sent: Sunday, October 21, 2001 6:10 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Washington Post: Government Considering Torturing Terror
Suspects


The question of the constitutional permissibility of torturing terrorism
suspects has come up before -- not surprisingly in Israel.   The Israeli
Supreme Court sitting as the High Court of Justice issued a judgment on 9
September 1999, holding that torture was an impermissible means of eliciting
information from terrorism suspects.    A translation of the decision can be
found at:

 <http://www.derechos.org/human-rights/mena/doc/torture.html>
http://www.derechos.org/human-rights/mena/doc/torture.html

Perhaps the most poignant quote from Chief Justice Barak's majority opinion
is:

            This decision opens with a description of the difficult reality
in which Israel finds herself security wise. We shall conclude this
          judgment by re-addressing that harsh reality. We are aware that
this decision does not ease dealing with that reality. This is the
          destiny of democracy, as not all means are acceptable to it, and
not all practices employed by its enemies are open before it.
          Although a democracy must often fight with one hand tied behind
its back, it nonetheless has the upper hand.        Preserving the Rule
          of Law and recognition of an individual's liberty constitutes an
important component in its understanding of security. At the end of
          the day, they strengthen its spirit and its strength and allow it
to overcome its difficulties.   (Emphasis added.)

Because of the special position in which the Israeli Supreme Court finds
itself (making constitutional law without a full-blown constitution and with
the power of judicial review severely limited), the Court also said that the
Knesset could pass a law permitting torture, as long as the permission were
clearly given and clearly limited to specific and narrow circumstances.

Perhaps the US should follow suit.   Courts should not allow torture, but if
the Congress stands up and votes on the record to permit torture in certain
cases (for example, where there is a well-established and imminent threat of
serious harm to others), then courts should take direction on this question
and resist efforts to find the law unconstitutional.  Then the decision
would be clearly political and those who authorized such practices could be
held more appropriately accountable by the public in whose name this would
be done.

regards,
kim





Kim Lane Scheppele
Professor of Law and Sociology
University of Pennsylvania
3400 Chestnut Street, Philadelphia PA 19104
Phone:  215-898-7674   Fax 215-573-2025
Email:   <mailto:kimlane at law.upenn.edu> kimlane at law.upenn.edu

----- Original Message -----
From: Volokh, Eugene <mailto:VOLOKH at mail.law.ucla.edu>
To: CONLAWPROF at listserv.ucla.edu <mailto:CONLAWPROF at listserv.ucla.edu>
Sent: Sunday, October 21, 2001 12:25 PM
Subject: Re: Washington Post: Government Considering Torturing Terror Susp
ects


        This is a fascinating question, but let me suggest it is composed of
three subissues:

        (1)  Physical torture, from beatings to worse.

        (2)  The administration of drugs, such as sodium pentothal, that
apparently diminish people's mental control over their speech.

        (3)  Threats to innocent family members.

        My sense is that, troubling as 1 and 2 might be, the most troubling
is item 3, because it involves intentional harm to people who may well be
completely innocent, and harm flowing solely because of their relationship
to the suspect.  I'm certainly not wild about torture or even drugging, but
if someone is pretty clearly guilty and the time bomb is ticking, the case
for 1 and 2 becomes pretty strong.  But 3 crosses such a dangerous line that
I think it would have to take a lot before we started to do that.

        Eugene

        -----Original Message-----
From:   David Bernstein [SMTP:Deliotb at AOL.COM]
Sent:   Saturday, October 20, 2001 8:26 PM
To:     CONLAWPROF at listserv.ucla.edu
Subject:        Washington Post: Government Considering Torturing Terror
Suspects


<http://www.washingtonpost.com/wp-dyn/articles/A27748-2001Oct20.html>
http://www.washingtonpost.com/wp-dyn/articles/A27748-2001Oct20.html


David E. Bernstein
Associate Professor
George Mason University
School of Law
(703) 993-8089
Home Page:  <http://mason.gmu.edu/~dbernste> http://mason.gmu.edu/~dbernste
Only One Place of Redress Home Page:
<http://mason.gmu.edu/~dbernste/Redress.html>
http://mason.gmu.edu/~dbernste/Redress.html