The right to torture?
The possible existence of secret CIA torture cells in parts of the world is making news these days, as Abiya pointed out in a comment to this recent post. On reaching home from school yesterday, I was able to catch just this little bit of Anderson Cooper 360 Degrees on CNN, where one of the guests was Harvard professor and renowned lawyer Alan Dershowiz. The full transcript is available here.
COOPER: Professor Dershowitz, under what circumstances do you think torture is justified?Now this raises certain questions in my mind:
ALAN DERSHOWITZ, AUTHOR: Torture is never justified and I hope we never have to use it in the United States. But if we ever had a ticking bomb terrorist who could under torture reveal the location of a bomb that would destroy hundreds of thousands of people, I guarantee you we would use it. That's an empirical judgment, not a normative one. And if we would use it, then we have to use it only with accountability. And that means that the president of the United States or the vice-president or the secretary of Defense, or the chief justice has to specifically authorize precisely the kind of extreme measures that are permitted to be used. No extreme measures without accountability. That has to be the rule.
- Are rights truly trumps (Dworkin) i.e. are they absolute and should never be violated in any circumstances? We would like to say say yes, but -
- Do certain rights trump others e.g. the right to life/security of person trumps the right to protection from torture? Yes, it would certainly seem so, however -
- Who can we trust to decide when that choice has to be made and to actually make that choice? Is the US government a qualified candidate, or is it a fair and reasonable claim that accepting Dershowitz's judgement, empirical or not, opens the door for torture to become the norm rather than the exception for the sake of, say, national security?
- Finally, perhaps the most important question of all: what's the alternative?
2 comments:
Rights are never absolute in the sense that they always need to be balanced against each other. Most Canadians seem to trust the courts to judge which rights are to be protected under the applicable circumstances.
Safiyyah, rights being absolute implies they cannot be undermined by some other social value e.g. economic benefit. You are right of course that within rights, some come before others.
My question is, in the case of torture and thinking about something like the scenario Alan Dershowitz presented, or to name a real life situation what we are seeing in Guantanamo Bay, do we trust our governments to make the right decision in choosing between rights? And if not, what, if any, alternatives do we have?
It is true that in certain cases the courts are the authority in deciding such issues, but not always. In Canada, it is parliament that considers and passes bills like C-36 - the courts will only come in if the constitutionality of such bills is challenged. Parliament often, as was the case in the same sex marriage law passed earlier this year, preempts any such challenges and gets the Supreme Court's approval (or non-objection) before voting and passing a new law.
(The suitability of the Supreme Court in being the arbiter is a different matter on its own and I won't get into that here.)
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