Speaking of torture advocates, how about Alan Dershowitz?

The moral dilemma posed by torture can be ignored only if we assume, as some do, that torture never works. I have been criticized for raising a red herring since it is “well known” that torture does not work. The tragic reality is that torture sometimes works, though many people wish it did not. There are numerous instances in which torture has produced self-proving, truthful information that was necessary to prevent harm to civilians.

The Washington Post has recounted a case from 1995 in which Philippine authorities tortured a terrorist into disclosing information that may have foiled plots to assassinate the Pope, crash eleven commercial airliners into the Pacific Ocean, and fly a private Cessna filled with explosives into CIA headquarters. For sixty-seven days, intelligence agents beat the suspect “with a chair and a long piece of wood [breaking most of his ribs], forced water into his mouth, and crushed lighted cigarettes into his private parts.” After successfully employing this procedure, they turned him over to American authorities, along with the lifesaving information they had beaten out of him. And following the killing of Osama bin Laden, CIA officials claimed that valuable information elicited by waterboarding helped in locating the world’s most wanted terrorist. It is impossible to avoid the difficult moral dilemma of choosing among evils by denying the empirical reality that torture sometimes works, even if it does not always work. No technique of crime prevention always works.

The goal of the torture warrant proposal is to reduce the use of torture to the smallest amount and degree possible, while creating public accountability for its rare use. I see it not as a compromise with civil liberties but rather as an effort to maximize civil liberties in the face of the realistic likelihood that torture does and will, in fact, take place below the radar screen of accountability.

It seems to me logical that a formal, visible, accountable, and centralized system is somewhat easier to control than an ad hoc, off-the-books, and under-the-radar-screen non-system. I believe, though I certainly cannot prove, that a formal requirement of a judicial warrant as a prerequisite to nonlethal torture would decrease the amount of physical violence directed against suspects. At the most obvious level, a double check is always more protective than a single check. In every instance in which a warrant is requested, a field officer has already decided that torture is justified; in the absence of a warrant requirement, the officer would simply have proceeded to implement torture. Requiring that decision to be approved by a judicial officer will result in fewer instances of torture even if the judges rarely turn down a request.

Moreover, I believe that most judges would require compelling evidence before they would authorize so extraordinary a departure from our constitutional norms. A record would be kept of every warrant granted, and although it is certainly possible that some individual agents might torture without a warrant, they would have no excuse, since a warrant procedure would be available. They could not claim “necessity,” because the decision as to whether the torture is indeed necessary has been taken out of their hands and placed in the hands of a judge. In addition, even if torture were deemed totally illegal without any exception, it would still occur, though the public would be less aware of its existence.

I also believe that the rights of the suspect would be better protected with a warrant requirement. He would be granted immunity, told that he was now compelled to testify, threatened with imprisonment, and given the option of providing the requested information. Only if he refused to do what he was legally compelled to do—provide necessary information, which could not incriminate him because of the immunity—would he be threatened with torture. Knowing that such a threat was authorized by the law, he might well provide the information. If he still refused, he would be subjected to judicially monitored physical measures designed to cause excruciating pain without leaving any lasting damage.

Of course, there is something different about torture that makes us loath to bring torture within the oversight of our judicial officers. In addition to the horrible history associated with torture, there is also the aesthetic of torture: the very idea of deliberately subjecting a captive human being to excruciating pain violates our sense of acceptable conduct. Yet what moral principle could justify the death penalty for past individual murders, while condemning nonlethal torture to prevent future mass murders? Bentham posed this rhetorical question as support for his argument regarding torture. In the United States we execute convicted murderers, despite compelling evidence of the unfairness and ineffectiveness of capital punishment. Yet many who support capital punishment recoil at the prospect of shoving a sterilized needle under the finger of a suspect who is refusing to divulge information that might prevent multiple deaths.

In our modern age, the death penalty is underrated, while pain is overrated. That we put the prisoner “to sleep” by injecting a lethal substance into his body covers up that death is forever while nonlethal pain is temporary. Despite the irrationality of these distinctions, they are understandable. But in the end, the absolute opposition to torture may rest more on historical and aesthetic considerations than on moral or logical considerations.

We cannot have a “don’t ask, don’t tell” policy on torture that enables our President and attorney general to close their eyes to uses of torture while simultaneously denying torture categorically— the kind of willful blindness condemned by the courts in other contexts. With no limitations, standards, principles, or accountability, the use of torture techniques will expand.

Torture, like any other topic, deserves a vigorous debate in a democracy such as ours. Even if government officials decline to discuss such issues, academics and advocacy groups have a duty to raise them and submit them to the marketplace of ideas. There may be danger in open discussion, but there is far greater danger in actions based on secret discussion. What is a quintessentially democratic problem requires a quintessentially democratic response. In short, it is not inconsistent to be opposed to torture and yet in favor of a torture warrant. Democratic accountability for torture is not an oxymoron.