Except for PBS donation drives, torture has been on the outs in the better-smelling parts of the Western world for hundreds of years. But thanks to the Sept. 11 terrorist attacks and the government’s giant-rousing reaction, the rack is back! Not formally, of course, but as my grandfather oft reminded me, “Patience is a virtue.”

While still struggling to become valid material for dinner-date conversations, as far as figuring out what to do with tight-lipped terror suspects, the idea is steadily catching on.

In his Nov. 5 Newsweek column, “Time to Think About Torture,” Jonathan Alter says even liberals are letting their minds go medieval with machinations of head vices and arm cranks … well, almost: “OK, not cattle prods or rubber hoses, at least not here in the United States, but something to jump-start the stalled investigation of the greatest crime in American history. Right now, four key hijacking suspects aren’t talking at all.”

It’s the same story on the right:

“Torture is bad,” admitted Tucker Carlson on CNN’s “Crossfire,” but cautioned that, “some things are worse. And under certain circumstances, it may be the lesser of two evils. Because some evils are pretty evil.”

Setting up the question by saying that the FBI is having a tough time getting witnesses to spill their cherished beans, Harvard Law Prof Alan Dershowitz kicked off a Nov. 8 Los Angeles Times commentary with this brow-furrowing puzzle: “When, if ever, is it justified to resort to unconventional techniques such as truth serum, moderate physical pressure and outright torture?”

It’s the question buzzing all around town: When, indeed, is it OK to pull out the hot coals and bamboo slivers?

“The constitutional answer to this question may surprise people who are not familiar with the current U.S. Supreme Court interpretation of the 5th Amendment privilege against self-incrimination,” explains the Dersh: “Any interrogation technique, including the use of truth serum or even torture, is not prohibited.”

What?!

“All that is prohibited is the introduction into evidence of the fruits of such techniques in a criminal trial against the person on whom the techniques were used. But the evidence could be used against that suspect in a non-criminal case – such as a deportation hearing – or against someone else.”

So it’s kosher to squeeze the seeds out of a guy – just so long as you use the info to try him in civil court or jail his mother. What a relief to find out that does not violate the Fifth Amendment’s self-finking protection.

Of course, as a law professor, Dershowitz has probably also heard about the Eighth Amendment, in which cruel and unusual punishment are pretty well pooh-poohed.

Not that there aren’t ways around this provision. If we start racking folks up as frequently as pool balls on Friday nights, then it won’t be so unusual anymore. And if Bill Clinton can change the definition of sex to somehow exclude blowjobs, then, with a little creativity, forced injections of truth serum, physical rough-ups, sleep deprivation and retina-bleaching bright lights can be recast as “therapeutic,” not cruel.

What we can’t get so easily around is that this might be a bad idea. Really bad.

The reason that “cruel and unusual punishment” is specifically listed in the Bill of Rights is that the founders came from a world where torture was still a reality. To them, torture, then practiced all over Europe, was anathema to liberty, as it had been seen in England since before William Blackstone.

By his day, Blackstone, Britain’s foremost legal mind and whose “Commentaries” became one of the key ingredients of American law, could declare that “trial by rack is utterly unknown to the law of England.” Having inherited that legal tradition in the U.S. doesn’t mean we have much respect for it, however; in fact, the prejudice in this debate against traditional American freedoms is striking.

“We can’t legalize physical torture – it’s contrary to American values,” says Alter, but his respect for those values runs pretty thin, as indicated by the fact that he basically recommends farming out the real torture to “our less squeamish allies. …” In other words, having values that run contrary to inflicting physical pain and mental distress – before we even find out that someone is guilty of something meriting such treatment – is evidence of being, not noble, but “squeamish.”

Earlier heirs of Blackstone faced similar challenges. Standing opposed to Blackstone’s school of thought, as Paul Craig Roberts and Lawrence M. Stratton detail in their book, “The Tyranny of Good Intentions,” was utilitarian philosopher Jeremy Bentham, who argued that by dispelling the “sentimental prejudice” against torture with the “dictates of reason and utility,” one could plainly see that “torture might be made use of with advantage.”

Fully succumbing to the Monty Python ditty, “Always look on the bright side of life,” Bentham was a tad too cheery on the state of the human condition.

“Bentham dismissed dangers of sadistic impulses and false confessions to terminate unbearable pain,” explain Roberts and Stratton. “He believed judges could be trusted to prescribe the proper degree of torture as they are to properly sentence the guilty.” Poor dumb Jeremy. If you’ve ever listened to a judge try to weigh his sentencing options in half a dozen cases, you’d be more than worried about any prescription of torture coming down from the bench. If the guy’s got indigestion, you’re a goner.

None of this is to argue that torture isn’t sometimes effective.

“Some torture clearly works,” says Alter. “Jordan broke the most notorious terrorist of the 1980s, Abu Nidal, by threatening his family. Philippine police reportedly helped crack the 1993 World Trade Center bombings (plus a plot to crash 11 U.S. airliners and kill the pope) by convincing a suspect that they were about to turn him over to the Israelis,” which is something that would make me confess to almost anything.

Until outlawed in 1999, Israel made much use of torture. As pointed out by Alisa Solomon in the Nov. 28 Village Voice, Israeli human rights group B’Tselem estimated that torture “was used by the security services against 85 percent of the Palestinians they interrogated – some 23,000 during the first intifada (1987 to 1994) – who were shackled to tiny chairs and left in agonizing positions, shaken violently, subjected to long stretches of blaring loud music and punishing bright lights, or deprived of sleep.”

This is, of course, a major problem with torture, just flagged by Roberts and Stratton. If confessing to something seems better than the pain you are currently or about to experience, then, even if you’ve done nothing wrong, confessing might be a good deal. Observes Solomon, “Indeed, that’s one reason coerced self-incriminating testimony is not admissible in court,” adding a worrisome note: “though in military tribunals, such as those President Bush has called for, such evidentiary rules would not apply.”

There’s no Fifth Amendment behind the closed door of the tribunal, and maybe no Eighth before a suspect arrives.

Despite these concerns, the calls for torture continue – especially in cases of extreme urgency.

The most common argument is the “ticking bomb” spiel, i.e., beating the snot out of a terrorist to find the location of an explosive. But even with the events of Sept. 11 in mind, such an occurrence is rare. Another version of the story is a kidnapper who has buried some urchin in a box. With a limited air supply, time is of the essence; if the location of the kid isn’t found pronto, he’s fertilizer.

Given those scenarios, torture seems just fine to me – even necessary. In fact, should such situations arise, hand me the rubber hose and cattle prods, get out of the way and let me go to work.

But, given how frequently bombs are hidden and suspects captured before they go off or kidnappers bury children alive and get caught in time for when such a tactic would matter, we’re talking about a monumental gamble here. The wager: Is it worth breaking with hundreds-year-old legal tradition to give authorities permission to pummel for truth in situations that rarely arise? Making rules to fit the exception is hardly wise. Especially since it may establish a pattern. Even Dershowitz is slick enough to note, “We know from experience that law enforcement personnel who are given limited authority to torture will expand its use.”

While it won’t go straight from ticking bombs and suffocating children to speeding tickets and j-walking, the acceptance of torture could spell monumental dangers to our legal system and set the stage for greater infringements of our liberty.

Torture may well be effective – even something that is practiced in rare cases on the sly – but providing it legal support could prove disastrous to our nation.


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