Tortured thought

Posted: Jan 31, 2002 12:00 AM
The fine handed down in Paris to the French general raises some questions the mere ventilation of which is painful. What happened is that Paul Aussaresses, an 83-year-old veteran of the Algerian war of 1954-1962, published a book in which he spoke matter-of-factly of his use of torture during the terrible years of the "Savage War for Peace," as British historian Alistair Horne wrote of that period. The retired general revealed that he had authorized torture and indeed executions quite routinely: "I was indifferent. They had to be killed, that's all there was to it."

But you can't say that in France, because to do so is to "justify war." That sounds very strange in this part of the world, to fine someone for writing a book describing events that had taken place, and indeed expressing his views on them. Some in France also find it strange. "This is the first ever act of censorship on a personal account of French history," the general's lawyer said. "One has to fight for the right to tell history. That is why we will appeal."

To "tell" history is different from implicitly approving of history, as the general has done by recounting tales of torture without instantly bemoaning them. And so the larger question is introduced. Professor Alan Dershowitz (as we might have expected) has spoken up vigorously on the subject, but making a rather unusual point. He says (a) torture happens; (b) we are better off trying to regulate torture, which is possible, than attempting to obliterate it, which is not; therefore (c) we should proceed to legalize it.

Dershowitz has in mind a "torture warrant." In specific situations, the person who wishes to resort to torture would phone a judge who would grant a warrant. What sort of situations? Not, says Dershowitz, torture intended to extract confessions. No, only what one might call ticking-bomb cases. Muhammad knows where the bomb is, it is due to go off in three hours and 50 minutes, and he declines to tell you where it is ...

The constitutionality of torture is, of course, a question one would need to confront. But hark! the Eighth Amendment to the Constitution proscribes cruel and unusual punishment. Torture can be used as punishment and is widely so used. But the kind of torture General Aussaresses was talking about, and Dershowitz is talking about, is not an instrument of punishment, but of epistemology. Where is the ticking bomb?

Mr. Horne and other learned analysts of torture take the position that in fact the practice does not work. Someone in the Philippines, being tortured, confessed to having taken part in the Oklahoma City bombing, about which in fact he knew nothing. He was willing to say anything to appease the torturers.

The most striking literary event that dealt with the subject, though without examining any philosophical questions, was the scene in Frederick Forsyth's novel "Day of the Jackal." The good guys know that the assassination of President Charles de Gaulle has been undertaken by a trained agent. They don't know who he is or where he is, but do track down an implicated manservant, kidnap and -- torture him. He comes up with the vital clue to the assassin, who is stopped just in time, saving the life of Charles de Gaulle and augmenting the fortunes of Fred Forsyth and Hollywood.

The book came and went without anybody protesting the torture, let alone asking a French court to ban the book and prosecute its author. The event was simply accepted: That's what people do. If, says Dershowitz, you learn that your son is buried in a coffin and will die in two hours, and you proceed to use physical means to get the kidnapper to talk, what jury is going to convict you?

But Mr. Dershowitz has it, actually, wrong. To attempt to describe legitimate reasons for torture breaks the spiritual back of the law. Dershowitz in the past has said that it is impossible to write law that could govern pornography, and he certainly has a case here, though his surrender to the difficulty smells a little of Schadenfreude. We should not torture an al-Qaida prisoner --general rule; but to torture the one who knows where the hijacked airborne Boeing 737 is headed is an exemption to the rule. But not one we would wish to codify. Some acts of warfare, like some intelligence, are works of art, not articles of war.