Unwarranted Torture Warrants: A Critique of the Dershowitz Proposal

Unlike many versions of the ticking-bomb argument (where the use of torture is hypothetically postulated as the only way to save innocent lives), Alan Dershowitz’s defense of torture is aimed to reduce, rather than to morally justify, the use of torture. As Dershowitz has repeatedly claimed, in print and in interviews, torture is morally repugnant. This (intuitive) view, however, is insufficient (on Dershowitz’s view, as on Michael Walzer’s) to decide whether or not torture might be politically justified in particular cases. Dershowitz claims that, given the inevitability of torture, as a democracy we simply must provide some judicial oversight of this practice. Such oversight (in the form of “torture warrants”), Dershowitz claims, will limit the amount of torture currently practiced by agents of the U.S. government. As Dershowitz plainly claims, the “goal [of the advocacy of torture warrants] was, and remains, to reduce the use of torture to the smallest amount and degree possible, while creating public accountability for its rare use” (TR, 259). Dershowitz’s defense of torture, of course, is predicated on the notion that torture is a fact of political reality—and one we have no chance of eliminating. This view leads him to pose the torture question as a sharp either/or: