Torture Warrants

In his article “Tortured Reasoning,” Alan Dershowitz explains that, while teaching and researching in Israel, he learned that the Israeli Secret Service employs a number of techniques on detainees in an attempt to prevent future terrorist attacks. Although he does not consider these techniques outright “torture” (he refers to their methods as “rough interrogation” in his article), Dershowitz argues that they violate core civil liberties and human rights (258). During his stay in Israel, Dershowitz presented the Israeli government and judiciary with an interesting dilemma: “is it worse to close our eyes to [torture] and tolerate its use by low-level law enforcement officials without accountability, or instead to bring it to the surface by requiring that a warrant of some kind be required as a precondition to the infliction of any type of torture under any circumstances” (257). If an investigator who believes that torture is necessary in order to save lives applies to a judge, Dershowitz argues, a judge would then have the authority and responsibility to determine whether or not (s)he should be granted a “torture warrant” (263). Dershowitz believes that this type of process could have eliminated the abuses committed in the Abu Ghraib prison outside of Baghdad. Dershowitz argues that, when “no lines are drawn, no guidelines issued, and no accountability accepted,” our leaders in Washington and our leaders on the field subtly sent a message to the police officials within the prison that it was acceptable to take any action that would allow them to obtain important information (276). If these officials were required to attain a “torture warrant” in this specific situation, Dershowitz believes that there would have been an authorized method for securing information through the use of extraordinary measures; judges would have gotten their “hands dirty” and high-ranking officials would not have been able to hide behind plausible deniability. “If the man with the hammer must get judicial approval before he can use it, he will probably use it less often and more carefully” (271).

If such a requirement is enforced, would it really reduce the frequency, severity, and duration of torture? Although Dershowitz argues that requiring a warrant would allow neutral and detached magistrates to decide whether or not torture is necessary in a given situation, it seems that Dershowitz fails to consider how the “magistrates” would respond when making these decisions. If these warrants could potentially save lives, would it matter whether or not judges dirtied their hands or high-ranking officials were unable to hide behind plausible deniability?