Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School.His many publications include Torture: A Collection and Our Undemocratic Constitution. He is a regular participant at the group blogs "Balkinization" and "Open University."
Levinson responded to a few questions about Torture: A Collection which were put to him by the political scientist Cary Federman, author of The Body and the State: Habeas Corpus and American Jurisprudence and a professor in the Department of Justice Studies at Montclair State University:Federman: Can one make a principled argument that torture by a dictator is essentially different from torture at the hands of representatives of a democratic government, in the name of legitimately attempting to extract information that could save lives?Read more about Torture: A Collection at the Oxford University Press website.
Levinson: I don't think this makes a substantial difference. Even dictators may have the genuine interests of their society at heart, and even the leaders of democratic governments may be motivated by the desire to get re-elected by appearing to be "tough on (suspected) terrorists." It's also a way of fooling ourselves in believing that our doing things that we identify with brutal dictators is all right because our motives are purer.
Federman: You say that we are doomed to contemplate torture. Are we, post 9/11, doomed to torture? Is there anything edifying about it at all? I mean, in the sense that it can prevent further murders.
Levinson: There's nothing "edifying" about torture. The real issue is whether we're willing to do it even if, by stipulation, it would prevent a death of an innocent person. Most people would say we can never know that with sufficient certainty. But others, and I am one of them, would say that it is such a departure from any acceptable human-rights norm as to be unacceptable even to save an innocent person (though, as a matter of fact, I think that most people would, albeit reluctantly, accept torture if convinced that it could save, say, thousands of lives).
Federman: You seem to suggest that torture warrants aren't such a bad idea. Can you explain your position?
Levinson: It isn't such a "bad idea" as some of its critics portray it. That is, even if one rejects it, as I do, one has to recognize that Dershowitz is responding to a serious reality, which is that states torture. The real question is whether an "ex ante" (before the fact) warrant would reduce torture more than an "ex post" (after the fact) system of prosecution. Dershowitz correctly notes that governments are notoriously unwilling to prosecute "wrongdoers for the state"; moreover, juries may be unlikely to convict. One should take the idea seriously and explain what is wrong with it, as against simply condemning Dershowitz as an insensitive lout, which he is not.
Federman: The philosopher Michael Walzer says that government officials always operate with dirty hands. What is your position on rendition, that is, the policy of sending suspected terrorists to countries that will use torture, so that the United States keeps its hands clean?
Levinson: I think that rendition is a fundamentally dishonest and corrupting policy precisely inasmuch as it allows US officials to lie to the public and pretend that we're really not implicated in the reality of torture. And, of course, there is little doubt that the US has violated both national and international law in its use of "renditions," which has contributed to the contempt directed at the US around the world.
--Marshal Zeringue