Lawyers Debate Rights

Frankfurter Professor of Law Alan M. Dershowitz and one of his former students, high-profile Boston criminal defense attorney Harvey A. Silverglate, squared off last night over the state of civil liberties after Sept. 11.

Dershowitz has made headlines lately by saying he would support torture in some cases. Yesterday he said he personally believes torture is always wrong, but argued that incorproating torture into the legal system and requiring a judge’s warrant to carry it out would expose a practice that is currently widespread behind the scenes.

“Is there anyone in this room who has doubt that the CIA...would engage in torture?” Dershowitz asked.

As the two jousted in an informal debate, Silverglate countered that torture should not be institutionalized in the legal system, though he did say he might support torture in extreme cases where an individual’s life could be saved only by extracting information from terrorists or kidnappers. Later, a jury would have to decide whether the torture was justified, he said.

Torture was the marquee topic at yesterday’s lively forum. But Dershowitz and Silverglate also tackled the merits of national ID cards and racial profiling to the applause and jeers of a packed hall at the Old South Meeting House near Downtown Crossing in Boston.

The very mention of ID cards elicited boos from the audience.

“The right to anonymity goes back to pre-revolutionary times,” said Silverglate, who suggested that if the cards are ever instituted—even on an optional basis—Americans would soon have to show them constantly everywhere they went.

But Dershowitz defended the idea, saying the Constituion offers no right to anonymity. He suggested the same argument could have been applied to the income tax, which seemed an even greater invasion of privacy when it was first implemented.

“I don’t believe anyone in America has the right to walk around with a bag on their head,” Dershowitz said.

ID cards would improve civil rights, he maintained, because police would not have to use racial profiling to identify criminals.

Dershowitz pointed to an example from Harvard history. In the ’60s, he said, black students at Harvard complained of being hassled by campus police. When the University introduced ID cards around that time, complaints of hassling went down—although black students still had to show their cards more often than whites, he said.

The debate offered two media-savvy lawyers a chance to show off their rhetorical flair. Toward the end of the 90 minute session, one woman in the audience chided Dershowitz for dominating the conversation. Dershowitz shot back that, if she was tired of him talking, she could go to a movie across the street.

In any event, most questioners asked Dershowitz to elaborate his position on torture—and he willingly indulged them.

While the word torture itself has an ugly stigma, Dershowitz said he would prefer that his son receive 15 lashes with a cane over staying 15 days on Riker’s Island.

“Pain is way, way over-rated,” he said.