Alan Dershowitz's Torture-Warrant Proposal: A Critique

Abstract

One major set of issues pertaining to the legal regulation of torture is centered on the question whether the use of torture should ever be legally authorized ex ante. Though punitive torture is no longer officially practiced in any liberal democracy, the matter of interrogational torture is still a live point of contention. One of the most widely discussed and frequently condemned proposals in recent years, floated chiefly by Alan Dershowitz, has submitted that certain torturous techniques of interrogation should indeed be legally authorized - provided that warrants for the plying of such techniques are sought and obtained beforehand by the relevant officials. Dershowitz’s torture-warrant proposal has been trenchantly criticized by quite a few of the other philosophers and legal theorists who write on these matters, but much remains to be said. The present paper undertakes a systematic demolition of Dershowitz's arguments.

Keywords: torture, Alan Dershowitz, torture warrants, interrogation, liberal democracy, catastrophes, Richard Posner, terrorism

JEL Classification: K4, K40, K49