ABSTRACT
Shortly after 9/11, a group of distinguished American law professors argued for the permissibility of torture in certain circumstances. Harvard law professor Alan Dershowitz argued that in the “ticking time bomb” scenario, governmental interrogators should be required to seek a “torture warrant” to permit the interrogators to torture the “ticking time bomb” terrorist.1 He wrote that a decision to torture should not be left to the individual interrogator, but that a court should have to authorize an extreme interrogation device. Professor Dershowitz criticizes Judge Aharon Barack of the Israeli Supreme Court who, writing for the court, rejected the government’s request for advanced authorization to torture a so-called ticking-time-bomb terrorist. The court reasoned that the necessity doctrine-the unavoidable choice of evils-might operate as a defense in a criminal prosecution of an interrogator, but, absent express legislation, could not authorize interrogators to torture.2
Professor Dershowitz argued that this position puts interrogators in an unfair position and lets responsibility for the momentous decision whether to torture fall too far down the official pecking order.3 He contended that judicial supervision would ensure society’s protection and that the extreme remedy of torture would be used only in exceptional circumstances.
