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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 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.
He 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 fifty 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. Mr. 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-Qaeda 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.
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