Academic journal article Albany Law Review

Torture Warrants and the Rule of Law

Academic journal article Albany Law Review

Torture Warrants and the Rule of Law

Article excerpt

On November 8, 2001, Alan Dershowitz published an opinion piece in the Los Angeles Times under the title, "Is There a Torturous Road to Justice?" (1) The column responded to news reports that federal officials were exploring their authority to use coercive methods to obtain information from people who might have knowledge about the 9/11 attacks or other past or planned "terrorist" incidents. (2) After discussing the ways in which the privilege against self-incrimination and other constitutional rights fail to provide clear protection against coercive interrogation, Dershowitz asked whether a judge could issue a warrant that would authorize investigators to use torture. Using the due process "shocks the conscience" test, (3) he suggested that a "torture warrant" could issue in "the rare 'ticking bomb' case," but he also stressed that this conclusion was "very troubling." The last part of the column gave reasons why U.S. officials might nonetheless opt for warrants. The primary reason, he suggested, was that they will use torture in such a situation anyway, and that "[i]f we are to have torture, it should be authorized by the law." (4)

The torture warrant proposal generated immediate reaction in the legal community, most of it negative. Dershowitz stood by his proposal in later writings, most notably in his book Why Terrorism Works. (5) He also took care to stress on numerous occasions--most recently in a March 25, 2007 letter to the New York Times--that he opposes torture and believes a warrant regime would result in less torture than the often ad hoc, off-the-books approach of the Bush administration. (6) As revelations began to pile up about abuse of prisoners at Abu Ghraib, Guantanamo Bay, and other places--abuse that at least sometimes amounted to torture--his prediction became harder to deny.

My goal in this Essay is not to evaluate the merits of Dershowitz's proposal. (7) I agree with him that the U.S. Constitution provides much less protection against torture and other abusive practices than people likely would expect. (8) I am also already on record in favor of an ex post approach to the problem of interrogational torture--meaning that I believe that after-the-fact application of doctrines such as the necessity defense provides the best way to address the very rare instances in which torture could be justified. (9) Among other things, I worry that an ex ante approach such as a torture warrant could encourage abuse and dilute the fragile force of the ban on torture both in national and international law and practice. (10) By contrast, I think that the inherent uncertainty of the ex post approach (what Dan Kahan calls "prudent obfuscation") would deter officials considering torture and allow rare exceptions at the same time that it maintained the general rule of no torture. (11)

That said, and despite my disagreement with it, the fact remains that the torture warrant version of the ex ante approach is plainly logical. (12) One arguable advantage is that the warrant puts additional and different layers between the interrogator and the prisoner. Under a warrant regime, interrogators or their commanding officers cannot simply decide to use coercion. Instead, investigators must convince government attorneys that there is a basis for using coercion, and the attorneys may have to convince their colleagues or supervisors. Further, the attorneys must then apply for a warrant and convince a judge that signing the warrant would be appropriate. These additional layers of process and the involvement of two branches of the federal government might result in less abuse, as Dershowitz claims. That result would be particularly likely if judges were to treat the request for a torture warrant as requiring closer examination than an ordinary search or arrest warrant. The warrant version of the ex ante approach also includes an element of the prudent obfuscation that I just championed. …

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