Torture warrants and the rule of law.

• Author: Parry, John T.

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. Rather than permitting torture through the enactment of statutes or the drafting of regulations, the decision to issue a warrant likely would involve a totality of the facts and circumstances approach, so that one case would not necessarily be a meaningful precedent for future cases. (13) Further, the ex post approach that I support has flaws of its own, perhaps the most significant of which is that it only works if we actually prosecute the people who torture. (14) The possibility that prosecutors--or their superiors--would use their discretion not to pursue criminal cases risks moving us from the sometimes formless necessity defense to an entirely ad hoc and unreviewable approach little different from the status quo. (15)

Rather than extend this discussion of the pros and cons of torture warrants, I want instead to explore some of the jurisprudential and theoretical stakes that this debate presents. One way of getting at this issue is to ask why Dershowitz's opponents are so vehement in their criticisms--criticisms that seem often to be aimed as much at him as at the proposal itself. (16) One possible explanation is a belief about the nature of torture. Torture, we are often told, is particularly bad and ranks with genocide in a special category of the very worst crimes. (17) For reasons that I have explained elsewhere, I find this characterization of torture to be very troubling, perhaps even pernicious, in part because it tends to legitimate "lesser" but far more pervasive forms of state violence and domination, or at least suggests that they are less worrisome than torture. (18)

Even putting that issue to one side, Dershowitz has explained repeatedly that he does not support torture. In fact, his proposal, if adopted, might not authorize as much coercion as has already taken place, and might not even allow as much as other "moderate" approaches, such as the one put forward by a Kennedy School working group which endorsed coercion in some instances. (19) He plainly does not go as far as Mirko Bagaric and Julie Clarke, who argue that torture is easily justified in many instances under a thoroughgoing utilitarian analysis. (20) Thus, Dershowitz clearly does not seek to open the floodgates of coercive interrogation, and the virulence of the criticism directed his way must have some other source.

To locate that source, we must return to the last paragraph of his original Los Angeles Times column: "Democracy requires accountability and transparency, especially when extraordinary steps are taken. Most important, it requires compliance with the rule of law. And such compliance is impossible when an extraordinary technique, such as torture, operates outside of the law." (21)

Put simply, Dershowitz argued that the only way to comply with the rule of law in a democratic society is to forbid reliance on extralegal process and unreviewed discretion. If we are to torture, we should do so within the law, which means not only that we should talk about it but also that we should talk about the ways in which we might allow it. The problem for critics of the proposal, who of course also express adherence to the rule of law, is that this kind of transparency might lead to acceptance. If we talk about torture, and in particular if we give a legal form to what would otherwise be an always illegal action, then inevitably we will also legitimate it. This concern is, I think, what generates much of Jeremy Waldron's criticism of the torture warrant. (22)

But then the question remains: What is to be done? The easy answer is simply not to torture or abuse people in government custody or under government control (and also not to hand them over to other governments willing to inflict that kind of treatment). (23) Many people are deeply committed to this principle, and they have done a great deal of important work to publicize and restrict torture and obtain remedies or help for victims of torture. Indeed, I believe that people who really want to combat torture should engage in more direct responses--for example, in political action--and pay less attention to law. Law, after all, failed to control, and indeed was interpreted to license, the systematic abuse of people detained in the "war on terror." (24)

The assertion that torture should not happen is normatively appealing and deceptively easy to invoke. Nonetheless, it falls short. The goal of ending torture and the effort to do so--whether those efforts are legal, political, or anything else--are emphatically not the same thing as what Harold Koh has called a "world without torture." (25) Nor do I think there is much chance of achieving that world. Torture continues to take place around the globe, sometimes as an isolated event, but often in a widespread or systematic manner. (26) Even more important, there has never been a time in the modern era when the United States and other liberal democracies have not used torture or other closely related forms of abuse to achieve national goals. (27)

Consider three countries in Europe. (28) Spain's treatment of suspected Basque terrorists in the post-Franco era has sometimes involved torture and other forms of coercion. (29) More pervasive is the conduct of France in Vietnam and especially Algeria, its willingness to send Basques to Spain where they have faced near certain abuse (a version, that is, of extraordinary rendition), and persistent complaints about its treatment of immigrants. (30) Yet France's use of torture is dwarfed by the efforts of the United Kingdom, whose officials routinely used torture and other abuse--the so-called five techniques, as well as other practices--to maintain its empire. (31) Indeed, British officials also took care to ensure that coercive methods were part of their imperial legacy. According to Anandswarup Gupta, for example, when the U.K. withdrew from India, it left behind "a Police Force ... which had been studiously trained in the use of brute force." (32) The worst was almost certainly the U.K.'s response to the Mau Mau...