well before the first al qaeda suspects were sent to Guantanamo Bay, and long before the firestorm over the Geneva Conventions, official discussion in the U.S. had already begun on the use of legal torture on uncooperative terrorism detainees. Clue number one was a Washington Post report quoting FBI agents to the effect that they felt the time was coming when drugs and physical means would have to be used to obtain desperately needed information.
Now the issue has been amplified by one of America's best-known civil liberties lawyers, Alan Dershowitz. And there's some evidence that it's beginning, in quieter corners, to be a consideration here in Canada.
Before September 11, there was an international consensus that the right to be free of torture was absolute. The prohibition has been codified in numerous international treaties and agreements, including the UN Declaration of Human Rights and the 1987 Convention Against Torture, both signed by Canada and the United States. Constitutional guarantees also stand in the way.
"It's one of the few rights that can't be suspended. It's always absolute," says Alex Neve, secretary-general of Amnesty International in Canada.
Not so for Dershowitz. In comments on 60 Minutes recently, the man Time magazine once called "the top lawyer of last resort in the country, a sort of judicial St. Jude," opined that, since it's inevitable that U.S. security forces will torture some terrorism suspects, the U.S. might as well create legal mechanisms to at least regulate torturers and control excesses.
Such torment, he said, might be legally justified in the case of a suspected terrorist believed to have knowledge of an imminent attack.
"The analogy I would draw is shooting down a civilian airplane that's heading toward a building," Dershowitz tells NOW. Writing in the San Francisco Chronicle, he argued that "the suspect would be given immunity from prosecution based on information elicited by the torture. The warrant would limit the torture to non-lethal means, such as sterile needles being inserted beneath the nails to cause excruciating pain without endangering life," he wrote.
The furor he created is clearly getting to him. In an interview, Dershowitz complains that his comments have been misunderstood. "People were accusing me of advocating torture, which wasn't the case," says the Harvard law prof. "Today a lot of people are telling the security forces to do it, "(but) just don't tell us.' I want the most extreme visibility and accountability."
At the same time, he says, the U.S. is already complicit in torture in other countries. It knowingly receives lots of intelligence from foreign security agencies in this way.
"Most democracies have played a cat-and-mouse game with it. They want to keep their hands clean but certainly don't want to discourage others from doing it. What I don't like is the hypocrisy, saying we don't do it, then doing it anyway."
Ironically for those arguing to codify rules limiting but allowing torture, some of its strongest critics are the very same cops and spies who would be asked to beat, strangle and drug prisoners.
A former CIA officer tells NOW the use of torture is "stupid, weak and despicable. Let me say this in clear and strong terms: torture is a cancer that does more damage to the interrogator and his cause than to the victim," says Robert Steele, a 25-year CIA and U.S. Marine Corps veteran and co-founder of the U.S. Marine Corps Intelligence Center.
"In my humble opinion, people who recommend that the USA torture these suspects should not be allowed to serve in positions of public authority, and are in all likelihood armchair warriors who have never themselves been in serious danger," says Steele, author of On Intelligence: Spies And Secrecy In An Open World.
Moreover, he says, torture is useless as an intelligence tool. "It is not now and never has been the best available means for obtaining information, especially in a time-sensitive situation. Very little intelligence comes from torture, even within those countries where it is widely practised, primarily as a punishment and deterrent more than as a serious intelligence method."
Over at the RCMP, a spokesperson recoils from the idea of legalized torture. "That's something that really goes against the Charter of Rights," says Corporal Benoît Desjardins. "Canada is trying to stop torture around the world. Why would we want to do that? We're not looking for this. The RCMP will never go that avenue."
But David Harris, former strategic planning chief at the Canadian Security Intelligence Service, says, "It's a terrible thing to have to concede, (but torture) can and will be a tool for liberal democracies as the stakes go up. I look at it as something unavoidable that we will have to use."
He agrees that a comprehensive set of regulations would help keep torturers within the "rule of law," even though the gruesome details of torture sessions would never be made public, for "security reasons."
"Are we going to turn a blind eye to what our security people will be constrained to do in the future?"
As a model, Harris points to Israel's use of "moderate physical pressure" on terrorist suspects, a policy overturned by the country's Supreme Court in 1999, though allowed in extreme circumstances. "In Israel, I fear we see the future."
And more frightening still, Harris believes officials in Ottawa have already started quiet, "very hypothetical, very preparatory' discussions.