Armed Hostilities

Counterterrorism: Constitutional and Legal Issues

Summary of the Article by Alan Dershowitz

One of the main aspects of a contemporary living in America is the fact that, as time goes on, the validity of a number of legal principles, commonly referred as the cornerstones of the American democracy, continues to be reassessed within the discursive framework of Utilitarianism. The article Should the ticking bomb terrorist be tortured? A case study in how a democracy should make tragic choices by Alan Dershowitz, exemplifies the soundness of this suggestion perfectly well, because in it, the author aimed for nothing short of defending the idea that torturing people, in order to obtain confessions/information, is not as morally repugnant and legally illegitimate, as people tend to assume. Nevertheless, there are many reasons to believe that Dershowitz’s idea, in this respect, cannot be considered thoroughly plausible. In my paper, I will explore the validity of this suggestion at length, while outlining the main discursive claims of the article in question and estimating the measure of their conceptual legitimacy.

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Critical Issues Addressed in The Article

Dershowitz begins his article by suggesting that throughout the course of their lives, people are being often required to choose between greater and lesser evils, as the integral part of addressing a number of different existential challenges. According to the author, this alone points out to the fact that there is nothing wrong about the discussion of what can be considered the set of circumstances, under which the use of torture on people should be permitted. After all, the surrounding social reality is much too complex to be adequately tackled, within the legal framework of how the country’s Constitution prescribes it to be done. The reason for this is that the very realities of the 21st century’s living imply that the notion of ‘morality’, as we know it, continues to grow increasingly outdated. Hence, the dilemma, “Neither the presence nor the absence of legal constraints answers the fundamental question: should we (torture)?” (Dershowitz, 2004, p. 191). The author illustrates the validity of this idea, in regards to the terrorist attacks of 9/11, which according to him could have been prevented, had the CIA and FBI been in the position to torture suspected Islamic terrorists, prior to 2001.

In the second part of his article (How I began thinking about torture), Dershowitz continues to advocate the appropriateness of subjecting suspects to torture, in relation to the hypothetical ‘ticking bomb’ scenario. In essence, this scenario refers to the situation when interrogators face the choice of whether to torture a positively identified terrorist (who is believed to be aware of the whereabouts of a few ‘ticking bombs’, set to go off within the matter of 24 hours in different parts of a city), or not. According to the author, the scenario in question leaves only a few doubts that the idea that, under some circumstances terrorists should be tortured, is not altogether deprived of a rationale. As he noted, “I realized that… the hypothetical ticking bomb terrorist was serving as a moral, intellectual, and legal justification for a pervasive system of coercive interrogation” (Dershowitz, p. 193). The fact that this idea is indeed thoroughly plausible the author explores, in relation to what happened to be the situation with torturing terrorists in Israel – a country where the concerned practice is indeed a widespread. In Dershowitz’s view, the mentioned situation suggests that one of the reasons why the majority of people in America are strongly opposed against torture, is that they perceive the threat of terrorism as being much too abstract. In its turn, this implies that there is nothing ‘fixed’ about people’s strongly negative attitude towards the idea of ‘coercive interrogation’.

In the third part of his article (The case for torturing: The ticking bomb terrorist), Dershowitz outlines the main torture-related pro and contra arguments. According to the author, the foremost argument in favor of the appropriateness of torture, as the instrument of obtaining guilty-pleas/information, has been articulated by Jeremy Bentham (1748 – 1832). This argument has to do with the main principle of Utilitarianism – a particular action should be considered morally justified, for as long as there are good reasons to believe that it will prove beneficial to the majority of potentially affected individuals. In regards to the hypothetical ‘ticking bomb’ scenario, Dershowitz rephrases this idea as follows, “The torture of one guilty person… would be justified to prevent the murder of thousands of innocent civilians” (p. 194). At the same time, the author admits that there can also be a number of the essentially utilitarian arguments against the practice in question. The main of them can be deemed the thoroughly logical assumption that, once legalized for a limited use, the practice of torturing terrorists/suspects will inevitably result in the eventual expansion of the legal range of its applicability. As Dershowitz pointed out, “The limited use of torture (will result)… in establishing a precedent that would inevitably be extended beyond its limited case utilitarian justification” (p. 197).

According to the author, however, this claim can be successfully countered in a number of different ways. To exemplify the validity of this suggestion, on his part, Dershowitz mentions the currently legalized practice (in the U.S.) of sentencing criminals to death. One of the reasons why there is no much of a public outcry in America against the continual legitimization of this particular practice, is that due to the recent breakthroughs in the field of medicine, putting a criminal to death has long ago ceased being considered utterly inhumane, “The executioner has been replaced by a paramedical technician, as the aesthetics of death have become more acceptable” (Dershowitz, p. 199). The author concludes that, in this respect, torture is not much different from a death penalty – it is not only that, as compared to the latter, the former is much more humane, but also that nowadays, torture can be performed on terrorists in such a matter that the would-be tortured individuals will not sustain any permanent damage to their health.

In the article’s final part (The three-or four-ways), Dershowitz concludes that, in light of the deployed line of pro-torture argumentation, there are four ways to approach the issue at stake. First – to allow the practical use of torture, as the part of the counter-terrorist interrogation strategy, on the premise that, since terrorists operate outside of the law, the otherwise applicable legal conventions (which forbid torture) do not quite apply to these people. Second – to turn a blind eye on the incidents of suspected/confirmed terrorists having been tortured, while claiming that these incidents never take place (Guantanamo). Third – to institutionalize the limited use of torture, in the form of courts issuing the so-called ‘torture warrants’, when extracting information out of captured terrorists becomes the matter of national security. Fourth – to declare once and for all that the idea of torturing terrorists is utterly immoral and to part with it altogether, even at the expense of endangering the lives of potentially targeted citizens.

The author clearly favors the third approach to dealing with the subject matter in question. His line of reasoning, in this respect, is quite logical. At first, Dershowitz points out to the fact that, regardless of whether we like it or not, the incidents of torture will continue taking place, within the context of how the American system of jurisprudence operates. The reason for this is that very often, torture indeed proves an utterly effective method of interrogation – especially when the factor of the acute time-shortage is at stake. In its turn, this brings the author to suggest that the concerned issue should be tackled alongside of the famous aphorism – if you cannot stop something from happening, you should try to make sure that the related developments take place under your close supervision. As Dershowitz noted, “No legal system operating under the rule of law should ever tolerate an ‘off-the-books’ approach to necessity… If it is necessary to torture in the ticking bomb case, then our governing laws should accommodate this practice” (p. 202). Hence, the earlier mentioned idea of a ‘torture warrant’, which can be deemed as the mean of reconciling the seemingly reconcilable notions of ‘law’ and ‘torture’, without undermining the functional integrity of how the country’s legal system operates.

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The Ticking Time Bomb Hypothesis and Dershowitz’s Comments on Bentham’s and Voltaire’s views

Even though, formally speaking, the ‘ticking bomb’ hypothesis does appear thoroughly plausible, this is far from being the actual case. There are a number of reasons for us to come up with this suggestion. Probably the main of them is that, in the rhetorical sense of this word, the argument in question can be positively identified as such that was meant to appeal to pathos (people’s emotions). While exposed to it, people are expected to visualize the scenes of carnage, caused by terrorist bombings, and to consequently conclude that it indeed makes much sense torturing terrorists, in order to prevent the planned acts of terror, on their part, from taking place. Yet, as we are well aware of, while in the highly emotional state of mind, people are being rarely capable of making rationale-based judgments, especially when the issue of terrorism is being concerned. What it means is that the ‘ticking bomb’ argument did not really aim at helping the law-enforcement authorities to combat terror, as much as it aimed at making American citizens comfortable with the idea that there is nothing wrong with torturing people, even though that this practice blatantly violates the basic provisions of the U.S. Constitution. In this respect, the ‘ticking bomb’ argument succeeded rather spectacularly. The CIA and FBI have been excessively using torture, as the mean of extracting confessions, ever since 2001 – something that has been confirmed by the 2015 Senate Torture Report (Hawkins, 2015). However, as this report indicates, neither of the tortured individuals has been suspected of withholding information about the ‘ticking bomb’.

This simply could not be otherwise – the examination of the ‘ticking bomb’ argument reveals that it is being conceptually fallacious. The main reason for this is that, even though the author did come up with the perfectly legitimate suggestion that the realities of the 21st century’s living call for the implementation of the innovative methods for opposing terrorism, he nevertheless failed at acknowledging the fact that, as of today, terrorism had ceased being what it used to be even as recently back, as fifty years ago. For example, during the course of the 20th century’s sixties and seventies, the world’s most notorious terrorist groups used to be concerned with pursuing either an ideological (RAF) or nationalistic (IRA) agenda (Nacos, 2012, p. 41). Nowadays, however, so-called ‘international terrorism’ (commonly associated with Islamic fundamentalists) appears to be solely concerned with spreading terror for the sake of spreading terror – something that hardly contributes towards the popularization of Islam. Yet, this type of terrorism helps rather substantially the process of people in Western countries being deprived of more and more of their constitutionally guaranteed rights and freedoms. If we subject this phenomena to the classic inquiry cui bono? (to whose benefit?), it will appear that the rise of ‘international terrorism’ cannot be discussed as anything else, but as the tool of preventing citizens in Western countries from paying attention to the socio-economic issues that really do matter, such as the rapidly widening gap between the poor and rich.

After all, while experiencing the sensation of irrational fear (because of the threat of ‘international terrorism’), one will hardly be willing to give much thought to the fact that, as of today, the U.S. continues to be gradually turned from being a democracy, into nothing short of an ideologically oppressive oligarchy, ruled by the bankers. In its turn, this explains why it was specifically the CIA, which stood behind the creation of such notorious terrorist organizations as Al-Qaeda (founded to fight Soviets in Afghanistan) and ISIS (composed out of the CIA-supported ‘fighters for freedom’ in Syria). As Vladimir Putin pointed out, “President Obama spoke about the Islamic State (ISIS) as one of the threats. But who helped to arm the people who were fighting Assad in Syria? Who created a favorable political and informational climate for them? Who pushed for arms supplies?” (Meeting, 2014, para. 65). The above-stated implies that, if the U.S. law-enforcement agencies ever face the task of locating and defusing a ‘ticking bomb’, before it explodes, they would be much better off requiring the Senate to demand from the county’s secret services to disclose just about everything they know about the concerned threat, as opposed to torturing people, who happened to be misfortunate enough to have the appearance of a ‘classical Islamic terrorist’, as shown in Hollywood movies.

There are also a number of purely ‘technical’ reasons, as to why torture cannot be considered a legitimate and above all effective method of extracting information out of terrorists – even if the concerned procedure takes place under a ‘torture warrant’. The main of these reasons are as follows:

  • As practice indicates, while tortured (such as by the mean of having needles inserted under its fingernails, suggested by Dershowitz), one will be willing to make just about any ‘confession’, required of him or her, in order to stop the excruciating pain.
  • As the instrument of extracting confessions/information out of terrorists, torture has long ago been proven much less effective, as compared to the other more time-consuming but thoroughly legal interrogation techniques. Among them, can be named the ‘on spot’ examination of the received answers’ validity or injecting a suspect with serum, in order to make him or her feel like telling the truth.
  • There is absolutely no guarantee that information, obtained from the tortured individual, will be timely enough, in order for the law-enforcement agencies to succeed with defusing ‘ticking bombs’, before they explode. This alone undermines the validity of the suggestion that the concerned practice should be partially legalized.

Thus, it is indeed quite impossible to refer to the ‘ticking bomb’ scenario, as such that holds much water. The fact that, despite having been much talked about, and despite the fact that Hollywood did succeed in turning this scenario into nothing short of a fear-triggering fetish, there has been not even a single incidence of the concerned scenario’s de facto actualization. The reason for this is that, contrary to what Dershowitz’s article implies, the irrationally-minded/uneducated Islamic fanatics, which Media would like us to believe accounted for the actual organizers of the most gruesome acts of terror that have taken place in the past (such as the attacks of 9/11), would never be capable to proceed with their murderous agenda in the well-planned and utterly efficient manner – unless we assume that they have been ‘guided’ by a third party. What it means is that the actual perpetrators of terror, caught ‘red handed’, cannot possibly possess complete information about the whereabouts of the rest of ‘ticking bombs’ – this is the prerogative of the mentioned ‘third party’, hidden behind the scene. Thus, subjecting these individuals to torture does not make much of a rational sense, other than serving the purpose of satisfying the sadistic instincts of the torturers – pure and simple.

As it was shown earlier, the legitimization of torture (even if limited) does not make any discursive or ‘technical’ sense. There are, however, many philosophical reasons to believe that such a legitimization should never obtain any paralegal status, as well. In this respect, we can mention Dershowitz’s ill-hidden admiration of Bentham and Voltaire, who used to promote the idea that in some cases, using torture as the interrogation-technique, is fully appropriate. The main pro-torture argumentative point, associated with both philosophers, is that if torturing criminals serves the interests of the majority of people, it should be permitted. This seemingly logical idea, however, is utterly erroneous. The reason for this is that, while promoting it, Bentham and Voltaire did not take into consideration the main postulate of the ‘theory of systems’, which has a number of the clearly defined sociological implications – the system’s overall quality, cannot be discussed as the sum of the qualities of this system’s individual elements. What it means is that, even though, while functioning a sovereign individual, one will indeed be tempted to prioritize ensuring its personal safety, the same individual’s existential priority would appear much different, once he or she is being referred to as the fully integrated member of a particular society. Specifically, a fully socialized person will consider protecting the society’s structural/functional integrity, as such that should be prioritized above whatever happened to be his or her safety-related agenda.

This helps to explain why, even though just about any democratic society is being composed of people, who during the course of their lives never cease to be driven by the essentially consumerist instincts, the main virtues of a democratic living, such as ‘liberty’, dignity’ and ‘respect of one’s rights’, have very little to do with the notion of consumerism. What it means is that the utilitarian argument, in favor of the partial legalization of torture, simply does not stand any ground – the overall interest of the majority of people is qualitatively different from the sum of their personal interests, as private citizens. In his article, Dershowitz proved himself partially aware of this fact. Hence, the author’s implicitly expressed realization that there is something innately wrong about the assumption that ensuring the safety of many justifies the idea that it is permissible to torture a few, “Anything goes as long as the number of people tortured or killed does not exceed the number that would be saved. This is morality by numbers…” (p.197). Therefore, it is quite impossible to agree with the idea that the benefits of the legalization of torture outweigh the affiliated dangers, simply because the former happened to be consistent with the essence of people’s survival-instincts. While existing as the society’s fully integrated members, people inevitably grow ever more comfortable with the idea that, in order for them to be able to qualify for a thoroughly democratic and therefore enjoyable living; they must be willing to make certain sacrifices. One of these sacrifices would be raising their voice against the legitimization of ‘torture warrants’ – even though that the implementation of the mentioned initiative could indeed result in lessening the likelihood for these people to end up falling victims to a terrorist attack.

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In this respect, we can mention the famous statement by one of America’s founding fathers – Benjamin Franklin, “Any society that would give up a little liberty to gain a little security will deserve neither and lose both” (Forefathers quotes, 2014, para. 7). The logic behind this statement is quite apparent. Even if it fully correlates with their conscious wishes, the deterioration of people’s civil rights and freedoms (in the form of the legitimization of the idea of ‘torture warrants’), will inevitably result in turning the affiliated society into a dictatorship – the form of a political governing that implies the de facto absence of law. Consequently, once people can no longer rely on the impartial law, as the mean of protecting themselves from being governmentally oppressed, their lives may hardly be considered thoroughly secure.

In light of the above-stated, it appears that it is specifically the mentioned earlier fourth way (road) of addressing the subject matter in question, which appears to be the most discursively appropriate one, “To forgo any use of torture and simply allow the preventable terrorist acts to occur” (Dershowitz, p. 200). The validity of this suggestion can be confirmed, in regards to what is being the actual objective of those who perpetrate the acts of terror – namely, to prove that the targeted society is being extremely sensitive to these acts. Thus, by refusing to apply any torture-allowing modifications to the Fifth Amendment, the country’s policy-makers will deprive potential terrorists of the actual motivation to be willing to pursue with their murderous agenda, in the first place. However, it is well understood, of course, that choosing in favor of this particular way to address the threat of terrorism, can hardly be considered fully justified, in the practical sense of this word. After all, if terrorists were guaranteed (factually, not formally) that they would not be tortured upon having been arrested, it would result in creating a certain public controversy. This simply could not be otherwise, because due to their willingness to target civilians, terrorists do not quite deserve to be treated in exact accordance with just about every liberty-guaranteeing provision of the U.S. Constitution.

Therefore, even though the fourth way of tackling terrorism does appear to be the most legally sound of the rest, it is specifically the second (‘hypocritical’) one, concerned with allowing terrorists to be subjected to torture and with not admitting that this practice ever takes place, which should be deemed the most practical. As Floyd Abrams, quoted in Dershowitz’s article, noted, “In a democracy sometimes it is necessary to do things off the books and below the radar screen” (Dershowitz, p. 201). The reason for this is that the utilization of this particular method would allow both: a) ensuring the sheer effectiveness of the process of terrorists being interrogated, b) preventing the values of democracy from being compromised in the eyes of ordinary citizens. The soundness of this claim can be confirmed, in relation to the fact that it is namely this particular strategy, which is being currently used by the secret services around the world in their dealings with terrorists and with those, who end up appointed as ‘terrorists’.

Before concluding this paper, we will need to summarize its main argumentative claims:

  • The ‘ticking bomb’ hypothesis is utterly implausible and as such, it cannot serve as the justification for the institutionalization of what Dershowitz refers to as ‘torture warrants’. The hypothesis’s main shortcoming is that it is emotionally-charged and that it is based upon the conceptually distorted view of what ‘international terrorism’ is all about.
  • Contrary to what Dershowitz’s article implies, terrorism in not merely the extrapolation of some people’s deep-seated irrational wickedness, but one among many instruments of maintaining the geopolitical dominance in the world, utilized by the U.S. and its allies. What it means is that subjecting the actual perpetrators of terrorist acts to torture, may hardly prove beneficial, for as long as interrogators expect this particular activity to serve the cause of preventing terrorist attacks from occurring in the future.
  • There is no good reason to believe that confessions/information, obtained from suspected/confirmed terrorists under torture, would be valid. If it was not the case, the Holy Inquisition would not be able to convince those ‘heretics’, it used to torture, to come up with confessions of having had sex with the Devil, for example.
  • Even if limited, the legitimization of torture will inevitably result in undermining the integrity of democratic institutions in the West – a dire price to be paid, in exchange for increasing the interrogators’ chances to locate a hypothetical (imaginary) ‘ticking bomb’.
  • Dershowitz’s proposition is morally despicable, even if assumed that it will contribute to ‘saving lives’. By subjecting terrorists to a ‘warranted’ torture, the representatives of the law-enforcement agencies will expose themselves being no better than the former.
  • It is namely the third way of addressing the issue, mentioned in the article, which appears to be the most circumstantially appropriate one. If there is indeed some acute necessity to utilize torture, as the part of the deployed interrogation-approach, this should be done in the ‘off-the-book’ manner.

Conclusion: Dershowitz’s “Fourth Road”

I believe that the provided line of argumentation, in defense of the idea that Dershowitz’s proposal should not be considered conceptually and methodologically valid, is fully consistent with the paper’s initial thesis. Apparently, while working on his article, the author was not quite as concerned with ‘saving lives’, as much as he was concerned with promoting the corporate agenda of the country’s neo-cons, who for the duration of the last twenty years, have been defining the essence of America’s domestic and foreign policies. In its turn, this agenda has to do with these people’s intention to preserve America’s dominance in the world, without adjusting the country’s actual functioning to be consistent with the current geopolitical realities in the arena of international politics. The only way, in which this could be accomplished (at least temporarily), is encouraging citizens to believe that ‘international terrorism’ represents a clear and present danger, which in turn will contribute towards increasing the acuteness of the sense of national solidarity, experienced by Americans.

Another positive effect of this (as seen by neo-cons), is that due to being prompted to believe that there is nothing wrong with the idea of legalizing torture, citizens will be more likely to remain arrogant of the fact that, as time goes on, the country’s top-officials continue to apply an effort into trying to trigger the outbreak of the WW3 – as the ultimate mean of delaying the eventual collapse of the U.S. economy, due to the staggering budget deficit of $18 trillion. This once again exposes Dershowitz’s pro-torture arguments, as such that do not represent much of a discursive value, whatsoever. Had the author experimented with how it feels having needles inserted under his own fingernails, he would not be quite as enthusiastic, while promoting the clearly fascist idea that it is Ok to torture people under a ‘torture warrant’.


Dershowitz, A. (2004). Should the ticking bomb terrorist be tortured? A case study in how a democracy should make tragic choices. In K. Darmer, R. Baird & S. Rosenbaum (Eds.), Civil liberties vs. national security in a post-9/11 world (pp. 189-214). Amherst: Prometheus Books.

Forefathers quotes. (2014). Web.

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Hawkins, K. (2015). If America wants to make sure it never tortures again, it must choose law over secrecy. Web.

Meeting of the Valdai international discussion club. (2014). Web.

Nacos, B. (2012). Terrorism and counterterrorism. London: Longman/Pearson.

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