NOV. 27. 2001 4:21PM

DERSHOWITZ HLS 617 495 7855

NO. 04B P. 3/7

ALAN M. DERSHOWITZ

1575 MASSACHUSETTS AVENUE
CAMBRIDGE • MASSACHUSETTS • 02138

Via email (letters@guardian.co.uk)

November 27, 2001

Letters to the Editor
*Guardian Unlimited*
3-7 Ray Street
London ED1R 3DR
United Kingdom

To the Editor:

Christopher Hitchens maliciously distorts my views on torture. He suggests that I advocate "inflicting torture on the Al Qaeda suspects now in detention." In fact, I have argued precisely the opposite position. In an OpEd piece in the *Los Angeles Times*, I said the following: "We know from experience that law enforcement personnel who are given limited authority to torture will expand its use. The cases that have generated the current debate over torture illustrate this problem. And, concerning the arrests made following the Sept. 11 attacks, there is no reason to believe that the detainees know about specific future terrorist targets. Yet there have been calls to torture these detainees."

I am unalterably opposed to the use of torture to produce confessions. And Hitchens knows this. In my writings I have argued that in the rare case of the "ticking bomb" — the case in which a captured terrorist refuses to reveal the location of a bomb which will kill hundreds of people — torture would, in fact, be used by low-level law-enforcement officials. As I have written, "the real debate is whether such torture should take place outside of our legal system or within it." I believe that democracy requires accountability and transparency and that requiring a judge to issue a so-called "torture warrant" would reduce the actual amount of torture being used. A torture warrant would require judges to sign off on the use of torture and be held accountable for its misuses. Any information produced as a result of judicially supervised nonlethal torture would be inadmissible in any trial. It could be used only to prevent the ticking bomb from exploding.

NOV. 27. 2001 4:21PM

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Letters to the Editor

November 27, 2001

Page 2

I have written about the difficult problem of the ticking-bomb case in order to bring torture out of the shadows, where it is currently practiced, and into the glare of public debate. My proposal would make it more difficult to do what so many democracies have done: winking an eye of quiet approval at torture while publicly condemning it.

I leave it to your readers to decide why Hitchens emphasized the fact that both Jonathan Alter and I "are Jewish," and why he falsely accused "two prominent American Jews [of] saying that torture should be practiced on foreigners." Hitchens believes that Israel has "brought [disgrace] upon Jews" and that the two Jewish authors who he condemns by specific reference to their religion "wish to add a further disgrace brought upon America." His call that Alter and I be "handled with tongs" is reminiscent of the insect references so commonly used by Nazis.

Long-time readers of Christopher Hutchins are aware that the "facts" he claims to be relying on must always be checked and double-checked, not because Hitchens makes honest mistakes but because he deliberately distorts to serve his perverted agenda.

Alan M. Dershowitz

AMD/pb

bcc: Henry Kissinger

Guardian, NOV. 27, 2001, 4:21PM

DERHOWITZ HLS 617 495 7855 www.gardian.co.uk/Archive/0,4273,74298448,00.html

[L.C]

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In case anyone's forgotten: torture doesn't work

Christopher Hitchens
Guardian

Wednesday November 14, 2001

Although I have been saying in this space how much I have
admired the fortitude and the general bearing of American
society throughout the crisis, there is one recent development
that has utterly appalled and nauseated me.

In a recent issue of Newsweek, a columnist named Jonathan
Alter published a call to consider inflicting torture on the
al-Qaida suspects now in detention. He was partly adapting a
suggestion from Professor Alan Dershowitz, known to many as
the obsequious loophole-artist for such fragrant clients as
Claus von Bulow and OJ Simpson.

I'm not going to insult Guardlan readers by rehearsing all the
arguments against torture. But perhaps we require a refresher
course in some of them. The worst thing about it, let us say, is
the very thing that its depraved advocates recommend for it. It
produces confessions.

That is exactly why even the society of medieval Europe began
to move to abolish it. Once you enter into that procedure, you
will be in the extracted-confession business. Not only is this
morally repellent, but from the intelligence viewpoint it is an
absolute cast-iron (or hot-iron) guarantee of a torrent of
worthless and deluded disinformation. How it might work on a
suicide-killer I am in no position to say, though I think I can
guess. The favourite experimental scenario - the man knows
where the bomb is, put the hooks into him swiftly - is actually a
contingency almost impossible to visualise. I certainly know of
no such real-life case. But if you hire torturers then you hire
torturers, whose whole outlook is based on stupidity and
coercion, and you can bet that even with a ticking bomb nearby
they would be busily gang-raping the wrong guy.

Its proven failure - in Algeria and Ulster say - is thus directly
related to its primeval and irrational essence. The worst thing,
in reading the work of Alter and Dershowitz, was the shudder
of recoil at the posturing attitudes they kept striking. Both wrote
as if it had cost them a lot, by way of moral courage, to say the
unsayable and to call for torturers to be put on the federal
payroll. How disgusting.

And one more thing. Both these pseudo-authors are Jewish,
and at least one of them - Dershowitz - has already been a
keen defender of Israeli repressive practices in the occupied

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11/27/01 10:08 AM

OCT 19 2004

Jessee Incao

From: William_Rogers@aporter.com
Sent: Tuesday, October 19, 2004 12:27 PM
To: Cecilia_Petrowsky@aporter.com; Jincao@kmaglobal.com
Subject: Re: Response to Owen, Vanity Fair

You have seen my draft, which Dr. Kissinger is marking up. In addition to his changes, let's also add the following to the paragraph referring to Owen's specific question 3:

Guzzetti misunderstood. As Schlaudeman said in a document to which you make no reference, Guzzetti heard what he wanted to hear. His English was, not to put too fine a point on it, inadequate. Under Secretary Robinson and Schlaudeman, then Assistant Secretary for Latin America, had also met with Guzetti on his trip to the United States that October, before his meeting with the Secretary, and had made the American attitude about human rights violations perfectly plain in tough language. In response to the Hill message you do refer to, Schlaudeman, in a message personally approved by Secretary Kissinger, corrected the record, saying in no uncertain terms that no one in Washington had signalled Guzzetti any tolerance of the regime's human rights violations. To extract from the fragment of the Hill message any hint that the United States bore a responsibility, when it was doing all it could to stop the Argentines, is palpable poppycock.

This communication may contain information that is legally privileged, confidential or exempt from disclosure. If you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer.

William Rogers
Arnold & Porter LLP
555 Twelfth Street, NW
Washington, DC 20004-1202

William_Rogers@aporter.com

Telephone: 202-942-5915
Fax: 202-942-5999

For more information about Arnold & Porter LLP, click here:

http://www.arnoldporter.com

Jessee Incao

From: William_Rogers@aporter.com
Sent: Tuesday, October 19, 2004 11:38 AM
To: jincao@kmaglobal.com
Cc: Cecilia_Petrowsky@aporter.com
Subject: Message for Dr. Kissinger

OCT 19 2004

Herewith some of what one might say to Mr. Walter Owen at Vanity Fair

Dear Mr. Owen:

I refer to your letter to Ms. Incao of yesterday. Secretary Kissinger is on travel. I was Assistant Secretary and Under Secretary of State at the time to which your questions refer. I was a participant in some of the events. And I am a long-time associate of his, so perhaps I might assist your fact checking effort.

>From your questions, one would gather that Mr. Hitchens is once again recycling the tired charges of American responsibility for the human rights violations in Chile and Argentina of thirty years ago, propped up with a few bits and pieces from newly-released Kissinger transcripts and memos. (See, in this connection, Mark Falcoff, "Kissinger & Chile: The Myth That Will Not Die, Commentary, November 2003, p. 41). Like a small squad of other critics who have ploughed this field before him, and as he did in his book, he will presumably attempt to connect the dots and find a picture of insensitivity amounting to official United States complicity. The facts -- you are checking facts -- are otherwise.

Those facts, if one is to present any sort of a balanced case, would in this instance
include:

-- Secretary Kissinger's stunning human rights address in mid-1976 to the assembled Foreign Ministers of the Hemisphere -- including the Chilean and the Argentine foreign ministers -- in which he made clear that human rights was the very essence of democracy and of our Hemispheric community. It is an address well worth recalling. One would hope that it would earn a reference as one of the important "facts" bearing on the issue. It is certainly of far greater significance as a definition of American policy and Secretary Kissinger's position than the scraps of off-the record conversations with State Department colleagues shorn of all context to which you refer to in your list of questions.

-- A month after that public statement, he sent a personal cable -- rather rare in State Department practice, and hence also worth noting if one were really interested in the facts -- to our Ambassadors in Chile and Argentina ordering them to intervene at the highest levels of the governments to which they were accredited to make clear that human rights violations by Operation Condor would not be tolerated and if carried out would damage relations with the United States.

-- Chile in 1973 and Argentina in 1976, when the military intervened in those two countries, were in chaos. In Chile, Allende was well on his way to destroying democracy and ruining the economy. In Argentina, the conditions were little short of anarchy. Murder, kidnapping and political violence were the rule of the day. The United States neither encouraged or supported the military takeovers, but the hope was that they might restore stability and get the two countries back on the road toward civil order, but, as Secretary Kissinger made clear in the documents recently released, within the established procedures of law. At no point -- as is clear from a fair reading of the 30,000 telephone conversations three of which you refer to -- did he ever condone, support or enourage human rights violations as a means to achieve stability.

These were the significant realities which were the context of the fragments of
conversations you refer to in your questions and which deserve recognition as facts, if
you intend any semblance of balance in the piece.

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[LC]

More specifically:

-- As to your question 1, Kissinger's policy was to communicate America's human rights concerns diplomatically. (And no officer was in fact transferred.) But it is also a fact worth noting, if you are checking facts, that the Carter Administration took over beginning in January of 1977 a few months after the Kissinger conversation you refer to occurred. Carter tried the more open and blunter approach with Argentina and Chile, condemning then regularly and publicly during the four years when most of the Argentine human rights abuses occurred. The effort got nowhere.

-- As to your question 2, Kissinger did say that the "quicker you [the new Argentine government, which had taken over an Argentina in chaos] succeed the better" -- meaning, if one understands the context correctly, the establishment of stability in a country then on the brink of anarchy. The critics, and presumably in this case, Mr. Hitchens, would like to interpret the reference to success to be a code word for wholesale human rights violations. By no stretch was the Secretary of State signalling tolerance for such measures as the means to achieve stability. His public statements and his private communications, to colleagues and to foreign officials, were quite otherwise.

-- As to your question 3, by the same token it is not a "fact" that Kissinger's desire to see the "terrorist problem" solved meant acceptance of human rights violations as a device to that end. This is misinterpretation run riot without basis in fact.

-- As to your question 4, Pinochet did, if the memorandum is correct as it presumably is, mention Letelier as an irritating presence in Washington in that meeting with the Secretary of State in Santiago almost thirty years ago. He did not say, or even hint, that he intended to kill Letelier. It is not a convention in diplomatic practice to interpret a reference by a President to a former official as a signal that the President intends to kill him. To suggest that we -- I was there -- should have understood then that Letelier's life was in danger is not fact. It is preposterous second-guessing. In point of fact, it is also worth noting that Secretary Kissinger had intervened personally on behalf of Letelier's admission to the United States. The notion that the United States had any kind of notifice that the Chilean military would kill Letelier, and do so in the capital of the United States, and that we could have prevented the killing, is utterly remote from fact. To suggest as much is as irresponsible as it is preposterous.

-- As to your question 4, it is not a fact but an outrageous invention and actionable that Kissinger "gave the order to assassinate Chile general Rene Schneider." There is nothing anywhere in the 30,000 documents recently released, or anywhere else in the written record or living memory, to corroborate such an outlandish suggestion.

-- As to your question 6. it is a fact that courts in several countries have asked for the relevant official United States government records and for Secretary Kissinger's memory of these distant events. It is a further fact that the State Department has compiled and transmitted detailed answers to each of these inquiries on behalf of the United States and Kissinger. It is a further fact that these answers demonstrate that the United States condemned and opposed the human rights violations of the military governments of Chile and Argentina in the final year of the Ford Administration, as indeed it did during the Carter Administration beginning in January of 1977. And it is a further fact that the State Department answers to the foreign courts have resolved the questions posed by these courts to the satisfaction of those courts, and that none has made any finding of complicity by the United States in the human rights violations at issue. It is also a fact that none of those courts, or any of the courts of the United States in which attempts have been made to litigate these ancient issues, have determined any fact supporting the notion that the United States in general or its Secretary of State in particular were complicit in the human rights atrocities of the day.

-- As to your question 7, it is not a "fact" that Dr. Kissinger "must take a lawyer with him" on his foreign travel. Where he needs a lawyer is in this country, to deal with articles like the one you are fact checking.

Sincerely yours,

William D. Rogers

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