Torture Warrants

We’ve been talking a lot about torture over the past several days. I think its fair to say that our class has come to a general consensus that torture is unjust and immoral. However, I’ll play devil’s advocate just to be perverse.

In March of last year I read an article by a Harvard Law professor, Alan Dershowitz. In the past several years Dershowitz has become infamous for his stance on torture in the United States. He believes that torture is inevitable in the War on Terror. We are naïve to think that these “enhanced interrogation techniques” will not be used just because it is illegal (just take a look at Gitmo).

Dershowitz is not disillusioned by this; he argues, “Judges should have to issue a ‘torture warrant’ in each case. Thus we would not be winking an eye of quiet approval at torture while publicly condemning it.”

Because torture will inevitably be used it should be permissible if there is an "absolute need to obtain immediate information in order to save lives coupled with probable cause that the suspect had such information and is unwilling to reveal it.” In these cases, a government official could apply for a warrant and then be given legal permission to use approved methods of “enhanced interrogation.”

The procedure for receiving a warrant would be the same procedure necessary to receive every other type of warrant; the judge issuing the warrant must be a neutral and detached magistrate (precedent was established in Wolf v. Colorado). Furthermore, the government official must demonstrate probable cause before he is granted a “torture warrant.” Afterwards, the interrogator would be allowed to use certain techniques in questioning enemy non-combatants in the War on Terror.

A warrant requirement would provide a standardized method for interrogation techniques. Thus, interrogations would have governmental oversight. Certain actions would be proscribed so we can prevent the most barbaric violations (such as disembowelment) in favor of other methods (such as sensory deprivation and waterboarding). Officials in violation of these methods can be held accountable. Sanctions (imprisonment, fines, etc.) can be imposed.

It’s interesting to see the morality aspect ignored entirely in Dershowitz’s position. He doesn’t argue that the torture is justified. Instead, he insists that it is the lesser of two evils. Thus, the morality of torture is not directly at issue for Dershowitz (probably because the utility and morality are at odds) His perspective is undeniably bleak. but the real question is this: Is the torture-warrant proposed by Alan Dershowitz a moral surrender or is it a realistic tool for interrogating suspected terrorists?