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Dershowitz has been touting torture as a technique for interrogating terrorists for some time and in a lot of places. He probably reached his largest audience in the 60 Minutes segment aired September 22. The segment, which was hosted by Mike Wallace, had several other speakers, among them Kenneth Roth, executive director of Human Rights Watch, and a retired one-eyed French general who tortured Algerians years ago and thinks the US should do it now. But it was Dershowitz who had most of the airtime.

We first see Dershowitz taking his book Shouting Fire from a shelf, holding it so it faces then camera, then carrying it to a student at a table and opening it, as if he were going to read some inspiring text. The next shot is a head and shoulders closeup and that's the shot they use of him for the rest of the segment.

Dershowitz is a very physical speaker. When he gets polemical, he jabs at his listener or audience with one, sometimes two index fingers, and he punches individual words out, almost shouting. His first statement on the program, for example, went like this (with the words in capitals said far louder than the words not in capitals):

If you got the ticking-bomb case, the case of the terrorist who knew preCISE [begins poking with one finger] ly WHERE and WHEN the BOMB would go off and it was the only way of saving five hundred, a thousand lives, EVERY [begins poking with two fingers] democratic society WOULD HAVE and will use torture.

That may give you some idea of the style. I won't try to imitate that any more. And I'll put it in more readable type:

DERSHOWITZ: If you got the ticking-bomb case, the case of the terrorist who knew precisely where and when the bomb would go off and it was the only way of saving five hundred, a thousand lives, every democratic society would have and will use torture.

MIKE WALLACE: Just in a ticking bomb case?

DERSHOWITZ: If anybody has any doubt about that, imagine your own child being kidnapped, the kidnapper being there, and mockingly telling you that the child has three hours of oxygen left and refusing to tell you where the child is buried. Is there anybody who wouldn't use torture to save the life of his child? And if you would, isn't it a bit selfish to say "It's okay to save my child's life but it's not okay to save the life of a thousand strangers? That's the way people will think about it.

So if you oppose torture you're selfish? The analogy turns the basic principle of criminal law topsy-turvy. The purpose of criminal law is to remove from the individual the need to and right of avenging criminal injury; the state, which is presumably objective and fair, takes on those tasks. People who are injured by a criminal may want to reciprocate in kind, but in civilized society that is not permitted. The reasons are very simple: how can society be sure that the violent action you take to avenge violent action will be appropriate, that it will even be delivered to the right person? Civilized society substitutes the notion of justice for the obligation of revenge, the rule of law for the rule of personal power. Of course someone knowing that Dershowitz's mocking kidnapper knew the secret that would save a child's life would want to extract that secret by whatever means. But that is not the same as policemen torturing people who may or may not know something they want to know.

WALLACE: And that is how, Dershowitz says, some people have begun to think about terrorism suspects in custody right now. "The question is, would it be constitutional?

DERSHOWITZ: It's not against the Fifth amendment if it's not admitted in a criminal case against the defendant. But it may be in violation of due process. But what is due process? Due process is the process you are due under the circumstances of the case. The process that an alleged terrorist who is planning to kill thousands of people may be due is very different than the process that an ordinary criminal may be due.

Dershowitz, a defense appeals lawyer, is here advocating the administration of punishment before trial. He's juxtaposing "an alleged terrorist" ("alleged" means that someone has made an accusation that the person in question has committed an act of terrorism or is thinking about committing one) and "an ordinary criminal" (someone who has been convicted). He's talking like a politician, not a lawyer. This is sophistry of the worst kind. The murders of civil rights workers by a Mississippi sheriff and his friends weren't against the Fifth amendment either-but they were indeed a violation of due process and they were also murder. Dershowitz treats due process as if it's some evanescent talking point, the legal equivalent of situational ethics. But it's not the circumstances of the case that sets the terms of due process; it's the law. And, thus far anyway, torture is against the law in the United States of America. And notice how, as Dershowitz warms to his argument, the numbers of potential deaths escalates: what was "five hundred, a thousand" a moment ago is now "thousands of people."

WALLACE: So if a liberal defense attorney says it, what chance does a suspected terrorist have?

An excellent question, which Dershowitz evades entirely. He ignores the potential abominations and instead goes to amoral utilitarianism:

DERSHOWITZ: I want to bring this debate to the forefront. It's going to happen. And If it's going to happen we can't just close our eyes and pretend that we live in a pure world.

WALLACE: And if it's going to happen we might as well make it legal by having judges issue what he calls "torture warrants," in rare cases.

DERSHOWITZ: Get a warrant. Justify in front of a judge the fact that this is the only conceivable way to save thousands of lives which are immanently endangered.

WALLACE: Torture warrants. I must say, it sounds medieval.

DERSHOWITZ: Well, It sounds like a contradiction in terms, because torture sounds illegal and a warrant sounds legal. My suggestion is that we bring it into the legal system so that we can control it. Rather than keeping it outside of the legal system where it exists in a nether land of weak approval.

That's the way Dershowitz would deal with violent abuse of civil and human rights by the police: since it's going to happen, we should legalize it.

What's wrong with this logic is this: bringing something into law only makes it legal; it does not make it right. Hitler got the Reichstag to legitimize nearly everything he did. The Nazis didn't just commit abominations against those groups they loathed. They legislated those abominations. The worst of what they did was perfectly legal. The only things absent were morality, justice and decency.

Kenneth Roth, who was a former federal prosecutor before he became executive director of Human Rights Watch, commented, "Alan Dershowitz has been spending too much time on the lecture circuit. He should go back to the classroom for a bit....A judge has no right to allow something that the Constitution flatly prohibits under any circumstances and that is the cruel, degrading treatment involved in torture." Roth pointed out that the US is signatory to anti-torture treaties. But Dershowitz would use illegal behavior by government agencies in the past to justify ignoring all of that:

DERSHOWITZ: If anybody has any doubt that our CIA over time has taught people to torture, has encouraged torture, has probably itself tortured in extreme cases, I have a bridge to sell you in Brooklyn.

His rationale is entirely utilitarian:

DERSHOWITZ: I have little doubt that torture has, on occasion, prevented the deaths of innocent people. That's what makes this issue so complex.

WALLACE: And if a foreign country uses torture, excessive force, to get information, that information can then be used in a US court?

DERSHOWITZ: [grinning] Unresolved issue of Constitutional law. If we had anything to do with it, it's clear it cannot be used in an American court. But if serendipitously a silver platter is presented to us on which there is a confession elicited by another agency and if it's a reliable confession, probably it could be used.

"Serendipitously" the way those thugs of Henry II serendipitously murdered Thomas Becket in 1170?

WALLACE: Professor Dershowitz, had we been having this conversation on September tenth, people would have said "What in the dickens are those two fools talking about."

DERSHOWITZ: Prior to September 11th I used to give a hypothetical in my class, If an airplane loaded with terrorists and civilians were flying toward-I used to use the Empire State Building-would it be appropriate to shoot it down? That was a debatable issue on September 10th. It was not a debatable issue on September 12th. Things change. Experiences change our conception of rights.

They very well may, but is that the way the law should work? Should last week's or last year's atrocity change our basic ideas of justice and decency and due process? Should our fundamental ideas and principles be victim to the whims of the most depraved and vicious? Is there nothing worth holding on to? Is torture our only reasoned response?