THE TORTURE WARRANT: THE NEED FOR AN ACCOUNTABLE APPROACH EVAN WILLIS. A Thesis Submitted to The Honors College

Transcription

1 1 THE TORTURE WARRANT: THE NEED FOR AN ACCOUNTABLE APPROACH BY EVAN WILLIS A Thesis Submitted to The Honors College In Partial Fulfillment of the Bachelors degree With Honors In Political Science THE UNIVERSITY OF ARIZONA MAY 2012 Approved by: Dr. Suzanne Dovi Department of Political Scie

2 2 Senior Thesis The Torture Warrant: The Need for an Accountable Approach. Evan Willis 1 I. Introduction 1-2 II. Definition of Torture..3-5 III. Ticking Time Bomb Explained..5-7 IV. Dershowitz s View On Torture V. Dershowitz: Why Warrants Are The Answer VI. Is Torture Effective? A. Torture Is Not Effective B. Torture Is Effective C. Summary...17 VII. Flaws In Dershowitz A. Time Constraint How To Obtain Warrant.20 B. Warrants Legitimize Torture C. Terrorist s Rights & Coddled Torture VIII. Alternative To Torture Warrants & Conclusion University of Arizona, Senior Honors Thesis. I would like to thank Professor Suzanne Dovi and Ruth Alminas for comments and suggestions on earlier drafts. The format of this page was obtained from Gabriella Blum from the Yale Journal of International Law.

3 3 Thesis Abstract: This thesis argues against Harvard Law professor Alan s Dershowitz s proposal for a torture warrant in the ticking time bomb scenario. It examines the different definitions of torture, explains Dershowitz s ticking time bomb dilemma, and then describes his controversial view on torture. My thesis then details Dershowitz s proposal for torture warrants, and recommends an alternative solution. In The Evan Willis Hypothesis, I point out flaws in his argument, such as limited time retrains, the impact of legalizing torture warrants, and the results of coddled torturing. I then submit my own resolution.

4 4 Evan Willis POL498H Senior Honors Thesis The Torture Warrant: The Need For An Accountable Approach Torture is an evil act. There is no doubt forcing someone to experience severe pain is troubling. But should it be authorized by the legal system? In other words, should the legal system approve the actions of the torturer? In this thesis, I will investigate not only questions about whether or not torture can be permissible or justified, but also whether torture should be legalized. In contrast to Alan Derhshowitz, I emphasize the importance of accountability of those responsible for torture. As will be seen, an accountability approach to torture offers an important correction to Dershowitz s torture warrants and an alternative to the legalization of torture. One of the leading and most controversial voices on torture is that of Alan Dershowitz. Although he writes on a range of topics from civil liberties to the Second Amendment, he is at his most provocative when he proposes a torture warrant in articles such as Want to Torture? Get a Warrant and Tortured Reasoning. Ironically the man that Newsweek described as America s "most peripatetic civil liberties lawyer and one of its most

5 5 distinguished defenders of individual rights 2 holds the view that torture should be legalized. More notably, Dershowitz was named a Guggenheim Fellow in 1979 and was a member of the Dream Team during the OJ Simpson trail. 3 Dershowitz has also been awarded honorary doctorates in law from Yeshiva University, the Hebrew Union College, Monmouth University, University of Haifa, Syracuse University, Fitchburg State College, Bar-Ilan University, and Brooklyn College. 4 There is no doubt Alan Dershowitz, with over 100 cited published articles, has made a name for him self in both academic and legal fields. But even with these credentials, Dershowitz holds the view that legalizing torture would defend individual rights. For Dershowitz, we can decrease the use of torture by having the state control it through warrants. Since torture is still used today to get confessions from suspects, he proposes we regulate it and incorporate it into our legal framework, instead of torturing under the radar. 5 As will be seen, this thesis will challenge various assumptions implicit in Dershowitz s argument for torture warrants. I will then propose an important 2 Dershowitz, Alan. Alan Dershowitz on the Dominique Strauss-Kahn Case. Newsweek-The Daily Beast. 1 July Page 1. 3 Dershowitz, Alan. Biography of Alan Dershowitz. AlanDershowitz.com See Dershowitz supra note 2. 5 Dershowitz, Alan. The Case for Torture Warrants. Reuters.com/Great-Debate. 7 September 2011.

6 6 corrective to his view. But before examining Dershowitz s views, it is necessary to lay some theoretical groundwork about the meaning of torture. Definition of Torture: There are many different ways of defining torture. For example, The Un Convention Against Torture uses the following definition: Torture is: any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. 6 However, Cornell University Law School states the U.S. Code Classification of torture is: (1) torture means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control; (2) severe mental pain or suffering means the prolonged mental harm caused or by resulting from--- (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; 6 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 1, Dec. 10, 1984, S. TREATY DOC. NO (1988), 1465 U.N.T.S. 113.

7 7 (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the sense or personality; and (3) United States means the several States of the United States, the District of Columbia, and commonwealths, territories, and possessions of the United States. 7 Additionally, Marquette University Law School notes the trouble with defining torture: In sum, torture is not an easy thing to define. The definition we have is vague and cannot be used to clearly put any tactics in the column of either torture or acceptable interrogation. Congress can work on the definition and the president can issue executive orders, but at the end of the day the definition of torture is a philosophical and moral issue, complicated by the threats facing our country today. 8 There is little doubt that torture can mean a range of different thoughts and activities. And, as seen above, there are many torture has different existing definitions. Dershowitz, however, uses the former Convention Against Torture definition in articles such as Want To Torture? Get A Warrant. One torture tactic Dershowitz mentions is sterile needles, being inserted beneath the nails to cause excruciating pain. 9 While this is one form of torture, there are also different characteristics of torture that different authors stress. Some emphasize physical harm, such as Dershowitz, yet torture can also be psychological or mental harm, such as 7 Cornell University Law School. Legal Information Institute. 18 USC 2340 DEFINITIONS: Torture. 8 Behm, Adam. The Trouble with Defining Torture. Marquette University Law School-Faculty Blog. 9 February Dershowitz, Alan. Want to torture? Get a warrant. San Francisco Chronicle. 22 January P. A19.

8 8 confinement or sleep deprivation. Even so, there are countless forms of torture. What is pertinent for Dershowitz s argument is torture s pervasiveness. According to Dershowitz, every democracy, including our own, has employed torture outside of the law. Throughout the years, police officers have tortured murder and rape suspects into confessing sometimes truthfully, sometimes not truthfully. 10 For Dershowitz, torture is a fact of democracy, despite being illegal and prohibited under international and domestic laws (such as in the United States). Dershowitz denounces torture but emphasizes its continued existence even though it is a severe violation of human rights. It is also declared to be unacceptable by Article 5 of the UN Universal Declaration of Human Rights. 11 For this reason, Dershowitz wants to restrict the use of torture-- by regulating it. In particular, he identifies certain conditions-- and only those conditions-- in which torture would be legally permissible. He calls these conditions the ticking time bomb scenario. Ticking Time Bomb: For Dershowitz, most justification for torture appeal to the ticking time bomb scenario. For example, when presented with the ticking time bomb scenario, Dershowitz questions whether or not torture should be permitted in order learn the whereabouts of the bomb. The ticking time bomb scenario 10 See Dershowitz supra note The United Nations. The Universal Declaration of Human Rights. Article 5.

9 9 goes like this: in the extreme case (extreme meaning there is a one in a million chase of this case occurring) a terrorist has planted a bomb in a large, crowded city that is ticking down until it explodes, resulting in the death of thousands of innocent people. According to Dershowitz, such a scenario is very rare, but our moral intuitions about torture are structured around this case. Dershowitz claims this scenario inevitable, however rare it may seem, and when it does torture will be used. 12 For this reason, Dershowitz hopes to decrease the general use of torture by approving the exceptional case of the ticking time bomb. He states an application for a torture warrant would have to be based on the absolute need to obtain immediate information in order to save lives coupled with probable cause that the suspect had such information and is unwilling to reveal it. 13 The ticking time bomb scenario goes beyond a terrorist simply planting a bomb. Additionally, the capturing authorities are absolutely certain the terrorist knows the location of the bomb, and the threat is 100% credible. All other possible means of producing the location of the bomb besides torture have been executed. Even with these attempts to find the bomb, interrogating authorities have been unsuccessful in finding the bomb s location. The suspect [terrorist who planted the bomb] would be given immunity from prosecution based on information elicited by the torture. The 12 See Dershowitz supra note See Dershowitz supra note 8.

10 10 warrant would limit the torture to nonlethal means, such as sterile needles, being inserted beneath the nails to cause excruciating pain without endangering life. 14 Because every single lawful technique has been tried, the only alternative left to find the bomb is by the usage of non-lethal torture. Torture is a last resort. Dershowitz proposes a torture warrant for only these circumstances. Dershowitz s view on Torture: Dershowitz is generally against torture: I am opposed to torture as a normative matter. 15 However, once presented with the rare ticking bomb scenario, he inquires should torture be used to gain the bomb s whereabouts, subsequently saving the lives of thousands of innocent people? To answer this question, he then proposes a solution in the form of a torture warrant. Dershowitz claims the goal of the warrant would be to reduce and limit the amount of torture that would, in fact, be used in an emergency. This is an issue that should be discussed now, before we confront the emergency. 16 Even though Dershowitz is against torture, he comes to the conclusion that warrants are the answer by stating this ticking bomb presents us with two evils, which are torture and terrorism. One of these evils must be chosen to settle the dilemma that the ticking bomb presents. Dershowitz goes on to 14 See Dershowitz supra note Dershowitz, Alan. Tortured Reasoning. Torture. Edited by Sam Levinson. Oxford University Press See Dershowitz supra note 8.

11 11 express there is simply no easy answer in this situation, and when presented with the choice of two appalling evils, it will be difficult to make the proper judgment. 17 He understands the ticking time bomb as not having a self-evident best choice. In particular, the ticking time bomb scenario places three common values in conflict. To properly balance these three values, Dershowitz concludes torture warrants are the best solution. He reaches this conclusion by listing the three values, determining which one is least important, then substituting that value with a justification of torture. The first of the three values is the safety and security of a nation s citizens. Based on his description of the ticking time bomb, torture is the only way to prevent the bomb from exploding and saving thousands of innocent civilians. Dershowitz states torture should be allowed since all other legal methods of gaining the required information have been tried. It is a last resort, torture is the only remaining option, and Dershowitz states it should be permitted in this scenario. Dershowitz is in favor of torture being used as a last resort. 18 Dershowitz s second value is the preservation of civil liberties and human rights. For this value to be upheld, he says we cannot allow torture to become a normalized part of our legal system (however, he later goes on to dismiss this value). Additionally, he says if non-lethal torture is needed to 17 Dershowitz, Alan. Yes, It Should Be On the Books, Boston Globe, Feb. 16, 2002, at A1. 18 I agree that torture can only be permissible when it is used as a last resort.

12 12 prevent thousands of deaths, we are morally obligated to use torture in the rare case of the ticking bomb when all other means to produce the location have been used. In this case, the rights of the citizens outweigh the rights of the terrorist. The benefits of saving thousands of innocent lives outweigh the cost of inflicting pain on a guilty rebel terrorist. However, for torture to be acceptable, it cannot be legalized by the courts or legal system of a democracy because torturing would violate the terrorist s rights, conflicting with Dershowitz s third value. His third value is open accountability and visibility in a democracy. This value means follow the laws that are set in a democracy. For Dershowitz, off the books or under the radar torturing would be contradictory to the practice of democracy because citizens need to assess the actions that governments do in their name. If citizens are unaware of an action, they cannot have a say in whether or not they agree with that action. Dershowitz alternatively states the actions of high officials, such as the President, should be consistent with the governing laws they enforce. Since a democracy requires a legal system that adheres to the rules of law, we must abide by the governing laws in that democracy. This leads Dershowitz to conclude that if a democracy refuses to change their laws to accommodate the use of torture, then the government should not participate in torture. This way, the laws should reflect the moral views of at least a majority of those citizens. Because one of his three values must inevitably be sacrificed in the

13 13 ticking time bomb scenario, Dershowitz recommends discarding the second value since this would produce the most overall good. In order to save lives, it is best to violate the preservation of civil liberties and human rights. Dershowitz s proposes to do so through torture warrants because he thinks warrants would reduce the slaughter of innocents and create the most overall good. Dershowitz; Why Warrants Are The Answer: For Dershowitz, torture warrants are valuable because they allow state torture to be monitored, i.e. allowing him to uphold the third value. He offers several justifications for a torture warrant. Torture warrants would have standards such as accountability (holding someone responsible), recordkeeping (keeping track of tortured victims and torture data), and limitations (what forms of torture can and cannot be used, such as electric shock). This is contrary to turning a blind eye and letting torture happen anyway. Dershowitz proposes legalizing these torture warrants instead of our current use of torturing under the table. His legal framework for warrants would allow torture to be legally permissible in extreme circumstances such as the ticking bomb scenario. Dershowitz desires openness and accountability, and proposes the monitoring of torture through judicial control because would maximize the most of his three values. His second value is therefore forfeited because since Dershowitz proposes torture, the torture victim s human rights will be violated.

14 14 However, order to gain a warrant, the warrant must be institutionalized and must be openly debated and decided. The warrant approval talks will be amongst judges issuing warrants, higher officials, and the executives involved in the ticking time bomb dilemma. Instead of closing our eyes and allowing torture to happen, which he said would expand employment of this practice, we could limit torture by institutionalizing it. Instead of leaving off the radar torture in the hands of emotional, personal biases, he says we should legitimize it through torture warrants. 19 While Dershowitz recognizes the downside of legitimizing a horrible practice no one wants to be a part of, he claims the benefit of a torture warrant is that it cabin[s] torture This means it would restrain torturing occurrences. He claims torture warrants would cabin torture because incidents would be decreased through legalization. Dershowitz s idea behind the torture warrant is that warrants would minimize resorting to unjustified torture, while allowing officials to openly debate if the warrant is needed. He also says warrants would reduce the frequency, severity, and duration of torture. 22 He quotes Mark Twain by saying to a man with a hammer, everything looks like a nail, and then says if the man with the hammer must receive judicial review before using it, he will probably use it less often and 19 Dershowitz, Alan. The Torture Warrant: A Response to Professor Strauss. New York Law School Law Review See Dershowitz supra note Dershowitz, Alan. The Use of Torture. Yahoo!Voices. 22 See Dershowitz supra note 14.

15 15 more carefully. The courts will be acting as a restraint on the would-be torturers. He relates this quote to torture, because instead of going around and smashing things with a hammer (or torturing), one will need approval from a higher official. He affirms this requirement would decrease the occurrence of torture. Moreover, the rights of the suspects in the ticking bomb case would be better protected if a warrant were required. 23 Furthermore, Dershowitz says if the terrorist knows a warrant could be authorized by law, it would give the terrorist more incentive to confess. Consequently, the need for torture would decrease. Dershowitz proposes torture warrants because they would provide the best way to reconcile his three values and reduce occurrences of torture. 24 Is Torture Effective? Torture is clearly is an extremely inhuman and degrading practice. A great deal of legal, political, and academic scholars, including Dershowitz, and myself are very opposed to torturing (except in the ticking-time bomb scenario) because it is such a heinous act. But one question is relevant for assessing the justifiability of its use--- namely, is torture effective? In other words, can torture actually produce the relevant information needed for the ticking time bomb? 23 See Dershowitz supra note I will later go on to detail why legalizing torture through warrants in the case of the ticking time bomb is erroneous.

16 16 Some claim torturing is ineffective and should never be used. Unfortunately, there is evidence on both sides. Those against its effectiveness have an intriguing stance: On the tactical level, it has been repeatedly asserted that torture simply does not work. The victim, it is said, has such a powerful incentive to tell the torturer what the torturer wants to hear that anything he says by definition is unreliable. 25 Furthermore, a torture victim can simply withhold the information being sought (however tremendously difficult that my be) or simply create an elaborate lie. Those tortured can also give false information (believed to be true because the informant was tortured) or give so much information that it does not provide a narrow focus for the ticking time bomb. These worries are exemplified in the testimony of Douglas A. Johnson, Executive Director at The Center for Victims of Torture, who said: Torture does not yield reliable information. Well-trained interrogators, within the military, the FBI, and the police have testified that torture does not work, is unreliable and distracting from the hard work of interrogation. Nearly every client at the Center for Victims of Torture, when subjected to torture, confessed to a crime they did not commit, gave up extraneous information, or supplied names of innocent friends or colleagues to their torturers McCarthy, Andrew C. Torture: Thinking about the Unthinkable. The Torture Debate in America. Edited by Karen J. Greenberg. Cambridge University Press Testimony of Douglas Johnson, Executive Director of the Center of Victims of Torture. Torture is a Moral Issue. Edited by George Hunsiger. Wm. B. Eerdmans Publishing Co Page 65.

17 17 And furthermore, The University of Vermont notes that trust can be more effective than torture: Interrogation tactics that include torture aren t as effective as establishing trust, and the quality of information received isn t as good because they come after hours of psychological and physical wear. 27 While establishing trust may be another way of gaining valuable information, it is not an option in the ticking time bomb scenario. Gaining trust, along with other tactics such as offering money, have already been used. Every tactic, except torture, has been tried. Be that as it may, the testimonies of torture being ineffective are endless. Clearly torture can sometimes be ineffective. Depending on the circumstance, the torture practice being used, the ability to understand pain, and the will power of the person being tortured, there is never a guarantee torture will yield successful results. But, on the other side of the spectrum, there are those that claim torture actually does produce truthful information. In particular, Dershowitz mentions the effectiveness of torture in his argument stating: Every democracy, including our own, has employed torture outside of the law. Throughout the years, police officers have tortured murder and rape suspects into confessing -- sometimes truthfully, sometimes not truthfully. 28 This is relevant because it shows torture sometimes is effective. And in the ticking time bomb scenario, with no other alternative but torture, a 27 Torture is not allowed under international law. The University of Vermont. 29 April See Dershowitz supra note 8.

18 18 tactic that is sometimes effective should be performed to save thousands of innocents. If it sometimes works, this is all we need to walk away with when assessing whether or not to use it in the ticking time bomb case. He also cites cases in which Israel has successfully used torture tactics: Until quite recently, Israel recognized the power of its security agencies to employ what it euphemistically called "moderate physical pressure" to elicit information from terrorists about continuing threats. This "pressure" entailed putting the suspect in a dingy cell with a smelly sack over his head and shaking him violently until he disclosed planned terrorist attacks. Israel never allowed the information elicited by these methods to be used in courts of law as confessions. But it did use the information to prevent terrorist acts. Several attacks were prevented by this unpleasant tactic. 29 This is the long way of saying Israeli officials tortured terrorists and successfully prevented deadly attacks from the information they provided. This is another example of torture sometimes being effective. Dershowitz concludes that torture can produce results: Torture, it turns out, can sometimes produce truthful information. 30 But even without Dershowitz s insistence of torture being effective, many other scholars claim gathering truthful information via torture is also achievable. Edward Peter s cites 15 th century Greeks torturing their slaves to gather evidence: 29 See Dershowitz supra note See Dershowitz supra note 4.

19 19 You regard torture as the surest test. Whenever freemen and slaves appear as witnesses, and it is necessary that fact in the case be discovered, you do not employ the testimony of the freemen, but by torture of the slaves you seek to find the truth in circumstances. And that is natural, men of the jury, for you know that some of the witnesses have appeared to give false evidence, but none of the slaves has ever proved to make untrue statements as a result of their torture. 31 While it may have been centuries ago, Peters claims it was proven to be effective then as well. However, in a modern testimony of tortures effectiveness, Philip Rumney writes: In their analysis of possible drawbacks and benefits of coercive interrogation, Posner and Vermeule cite evidence that strongly suggests that coercive interrogation [torture] saves lives. 32 And furthermore, Mirko Bagaric and Julie Clarke state: The main benefit of torture is that it is an excellent means of gathering information. 33 Clearly, there is a diverse range of opinions on torture s effectiveness. Some are absolutely positive it does not work, while others are sure it does. Even still, it is interesting to note that although torture has been around for centuries, the empirical evidence of the effectiveness of torture is, at best, mixed Peters, Edward. Torture. University of Pennsylvania Press Page Posner, Eric A. & Adrian Vermeule. Should Coercive Interrogation Be Legal? University of Chicago Pub. Kaw & Legal Theory Working Paper No [Obtained from Is Coercive Interrogation of Terrorist Suspects Effective? A Response To Bagaric and Clarke By Philip N.S. Rumney]. 33 Bagaric, Mirko & Julie Clarke. Not Enough Official Torture in the World? The Circumstances in Which Torture Is Morally Justifiable. 39. University of San Francisco Law Review

20 20 Because the arguments for and against the effectiveness of torture are inconclusive, it is important to stress torture has been proven to sometimes work. For this reason, when the situation is desperate enough, it will be necessary to consider torture a feasible option. This is especially true in the case of the ticking-bomb, when all other means to get the terrorist to talk (such as offering money, immunity, giving him truth-serums, etc.) have been applied. Therefore, torturing the terrorist renders as the last resort to save the lives of thousands of people. The ticking-time bomb scenario makes torture the only option left. On these grounds, torture is likely to be implemented in the ticking-bomb scenario, with or without legalizing torture warrants. Therefore, the need for ex post facto accountability is necessary with or without a warrant, which I will soon discuss. Flaws in Dershowitz s Warrant: The Evan Willis Hypothesis I am going to identify three weaknesses in Dershowitz s proposal for torture warrants. After considering these weaknesses, I will propose an important corrective to Dershowitz s torture warrant. The Time Constraint Weakness: One problem with Dershowitz s torture warrant is his failure to adequately recognize the severe time constraints in the ticking bomb 34 Blum, Gabriella, The Laws of War and the 'Lesser Evil'. Harvard Law School Faculty Scholarship Series Working Paper No. 24; Yale Journal of International Law, Vol. 35, No. 1, 2010.

21 21 scenario. 35 This brings about numerous problems. The bomb is literally ticking down until it explodes and kills thousands of people. By wasting precious time to obtain a warrant, which itself requires a time-consuming process for gaining authorization from a judge, officials are risking the acquisition of information. This makes the entire process of gaining a warrant counterproductive and potentially very dangerous. Going about gathering the information needed for a warrant would ultimately waste time, and thereby make the entire process impractical. The time constraints facing those in the ticking time bomb scenario prevents opportunities to have open conversation with legal officials to weigh the pros and cons of torturing. Gaining a warrant under these time constraints is also foolish. Very few judges are going to refuse signing the warrant after having open deliberation according to the Emergency Exceptions clause. 36 According to the Emergency Exceptions clause: The need for law enforcement to intervene in the face of a crisis without the requirement of judicial oversight has long been recognized by the judiciary. As Chief Justice (then Judge) Burger noted in Wayne v. United States: [A] warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person. The need to protect or preserve life or 35 Dershowitz builds time constraints into the ticking time bomb scenario but does not acknowledge how the constraints impact getting a warrant. 36 Search Warrants: What They Are and When They re Necessary. NOLO Legal Encyclopedia

22 22 avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. 37 The lives of thousands of innocent people would be considered a warrantless emergency, especially with the time constraints in place. But instead of using the Emergency Exceptions clause, Dershowitz thinks it is practical to gather the proper officials and have an open discussion. This shows Dershowitz does not appreciate the importance of time in this scenario. Considering bureaucratic inefficiencies, such as a backup in the courts, being able to locate an available judge, and going through other various other organizational roles, warrants seem counterproductive. Legal system mistakes can occasionally occur as well. For example, the Supreme Court recently ruled that an Alabama death row inmate who missed a filing deadline thanks to a mix-up in the mailroom of a prominent New York law firm must be given another chance. 38 Moreover, if a warrant were to be openly debated and decided upon, a judge can easily deny the warrant or brush the case off. Or, if the judge was convinced by testimony of Douglas A. Johnson, as shown above, he may not want to be held responsible for such an inhuman practice some argue is ineffective. Warrants can always be denied for one reason or another. For example, in Kent County, Michigan, 665 felony warrants were denied in 37 Pettry, Michael T. The Emergency Aid Exception to the Fourth Amendment s Warrant Requirement. The FBI Law Enforcement Bulletin The FBI.gov. 38 Liptak, Adam. Justices Rule for Inmate After Mailroom Mix-Up. The New York Times. 18 January 2012.

23 The ticking time bomb scenario is a warrantless emergency that leaves far too many lives at risk for the chance of denial. Additionally, the warrant approval process can be lengthy. In general, to obtain a warrant there are a series of legal steps in order to be obtained. The steps to obtain a warrant are as follows: 40 When one examines the steps it takes to obtain a warrant, torture 39 Forsyth, William A Annual Report for Kent County, Michigan. Kent County Prosecutor s Office Page Bell, Patricia. How to Obtain A Warrant. ehow.com>legal. 9 December 2008.

24 24 warrants become especially impractical because of time constraints. Each of these steps is slow and time-consuming. Along with gathering and presenting evidence, and then holding open deliberation, this could very well be the make or break for this scenario. Since there are Emergency Exceptions, as noted earlier, a warrant is not required in certain circumstances in the first place. As a general rule, the police are authorized to make a warrantless search when the time it would take to get a warrant would jeopardize public safety or lead to the loss of important evidence. 41 An example in which most judges would uphold a warrantless search would be a police officer "in hot pursuit" of a fleeing suspect that continues the chase into the suspect's dwelling in order to make the arrest. In these types of emergency situations, an officer's duty to protect people and preserve evidence outweighs the warrant requirement. 42 The ticking time bomb puts much more people in danger than a suspect fleeing into a dwelling, which translated into an Emergency Exception. The ticking time bomb scenario calls for an emergency warrant exception as well, since it would be protecting such a large number of people. 43 An additional level of 41 Search Warrants: What They Are and When They re Necessary. NOLO Legal Encyclopedia See supra note The existence of the Emergency Exceptions Clause is especially useful with the ticking time bomb time constraints when it may not be possible to go through all the legal requirements to obtain a warrant.

25 25 prior review, 44 while seeming like a good idea in a perfect world, is actually unrealistic and unnecessary the extreme scenario he proposes. The Legitimize Torture Argument: By allowing torture warrants to be issued, government is implicitly condoning torture. Dershowitz states his goal is to reduce torture through legalization, claiming warrants would ultimately cabin torture because they would reduce the frequency, severity, and duration of torture. 45 I argue that what he calls cabining torture would instead allow the practice of torture to spread. If normalized, torture could eventually be warranted in the future for less serious circumstances, leading the United States down a slippery slope. For example, strip searches in the United States use to require probable cause. But now that law has changed: It might seem that in the United States, being pulled over for driving without a seat belt should not end with the government ordering you to take off your clothes and "lift your genitals." But there is no guarantee that this is the case -- not since the Supreme Court ruled this week that the Constitution does not prohibit the government from strip searching people charged with even minor offenses. The court's 5-4 ruling turns a deeply humiliating procedure -- one most Americans would very much like to avoid -- into a routine law enforcement tactic. 46 As shown above, deeply humiliating procedures have been legalized before. And if torture worked once, then perhaps government officials are 44 See Dershowitz supra note See Dershowitz supra note Cohen, Adam. Strip Searches: The Supreme Court s Disturbing Decision. Time Magazine. Time.com. 6 April 2012.

26 26 likely to use it again for more insignificant crimes. Since a police officer is now permitted to fondle someone for wrongdoings such as jay-walking, there is no definitive say in where the road to torture will lead if warrants become legalized. Do we want to find out? Another argument against normalizing torture is by Bernard Chazelle, who summarizes the cancerous effect legalizing torture will have: Torture creep is yet another reason to make the legal ban watertight. The historical record indicates that the slightest legal opening to torture will metastasize into widespread institutional abuse. This "cancerous" spread affects intention, which leads to intimidation, submission, and extraction of false confessions. Even a state that allows torture only in rare cases will soon insist on competent torturers; hence torture schools, torture experts, torture research, and, given the gravity of the matter, an administrative state structure to oversee it all. In other words, it will build itself a "School of the Americas." [12] The evidence is overwhelming: torture intended as a security tool will always morph into an instrument of power. 47 This is yet another example of how legalizing torture would lead us down a slippery slope. If normalized like Dershowitz proposes, there is a strong possibility for abusing the use of torture. Like Chazelle claims, torture could very well become an instrument of power if legalized. Do we want to find this out as well? Thankfully, torture is still illegal under the UN Convention Against Torture, 48 as well as the International Covenant on Civil and Political Rights. 47 See supra note The UN Convention Against Torture. UN Treaty Collection: Chapter IV; Human Rights. 25 April 2012.

27 27 Therefore, our governing officials should abide by these laws, not create new ones to allow torture. Legitimizing torture also raises various questions: does the world s hegemonic power really want to condone a practice that reifies immoral acts? What example would legalizing torture warrants set for the rest of the world? It is not far-fetched to say that if we (The United States) set a standard that shows torture is legitimate, we will be sending civilization downhill both domestically and internationally. By legalizing torture warrants, the United States would be institutionalizing and recognizing a horrible practice that is illegal in almost every country of the world. Countries such as Libya, Cuba, China, Romania, Afghanistan, and Columbia are all members in the United Nations Convention Against Torture, meaning they all recognize torture as cruel, inhuman, or degrading treatment like the United States currently does. 49 Do we really want to rethink this decision? Issuing torture warrants would show that we find torture to be legally permissible and okay in some cases, while even these other countries do not. If the world s hegemonic state legalizes a heinous practice, who is to say other, lesser developed countries will not follow in our footsteps? A torture warrant would establish that The United States feels torturing is sometimes all right, when it is not. This goes against the fundamentals of democracy and international law. Another problem with legalized torture and the ticking time bomb scenario is that it excuses the torture authorized by public officials. The 49 See supra note 46.

28 28 ticking time bomb capturing officials have no choice but to break the law. No one's yet suggested a new speed limit sign: "55 Unless You're Taking Your Dying Uncle To The Hospital." Speed up if you must, and pay the price later. 50 This concept of ex post facto accountability is going to be used with or without a warrant. Ex post facto laws (or after the fact laws) are laws that provide for the infliction of punishment upon a person for some prior act that, at the time it was committed, was not illegal. 51 In other words, the suspect is tortured and then the torturing is justified later by saving thousands of lives. Consequentially, "If we legalize torture, even under constrained conditions, we will have given up a large part of the idea that is America. We will have lost the war before we have given ourselves the chance to win it. 52 Legalizing and institutionalizing a practice many people find more dehumanizing than murder is not a road our country should travel down, but Dershowitz believes it is. The Terrorist s Rights & Coddled Torture Argument: My third problem with torture warrants is that such a warrant would have rules and be monitored, providing the terrorist with tickled torture. 50 Chazelle, Bernard. How to Argue Against Torture. Counterpunch.org. 22 July Ex Post Facto Laws. Legal Dictionary. West s Encyclopedia of American Law, edition 2. The Gale Group,Inc Sullivan, Andrew. The Abolition Of Torture. The New Republic. 19 Decemeber 2005.

29 29 Dershowitz thinks that if the terrorist knows a warrant could be authorized by law, it would give him more incentive to provide a confession. 53 But if the terrorist knows there are torture guidelines in place and he is being monitored by the legal system, is he more likely to provide the necessary information? If the terrorist knows he will absolutely not be killed, is he more likely to confess? The probability is not very high. For example, the chances are that high voltage electric shocking is more likely to get a confession rather than tickling a suspect s foot with a feather for a long period of time. Warrants yield coddled torture, which is essentially less likely to produce the bomb s location. If the terrorist knows he faces the possibility of death, instead of knowing it is (technically) possible to stick through the pain, he will have much more incentive to talk since his life is at stake. For example: At Abu Ghraib, Guantanamo Bay, and secret prisons in foreign locations, Americans also used loud music, name calling/ego attacks, simulated drowning (so-called "water boarding"), and a few other torture techniques of their own all this mostly produced useless information. 54 Name-calling and blasting loud music sounds more or less like an annoying neighbor, rather than an effective torture tactic. These strategies are far less cruel than other torture tactics that have been noted effective, i.e. they are more coddled compared to other strategies. 53 See Dershowitz supra note Nuttle, David. Should the US allow torture as a mere means of fighting the War on terror? Helium.com 21 August 2008.

30 30 For example, Dershowitz s case from earlier noted: a suspect [was placed] in a dingy cell with a smelly sack over his head and shaking him violently until he disclosed planned terrorist attacks. Few would argue being called names is worse than being violently rattled with a stinky sack over their head. Since the ticking time bomb puts thousands of lives at risk, higher officials should not gamble with a coddled form of torture. Dennis Thompson notes: the fundamental principle of common morality requires that we respect human beings as rational creatures, but that does not mean that we cannot defend out rights against those who do not respect ours. 55 Torturing would count as defending our rights against those who do not respect ours. Warrants would instead preserve the torture victim s rights and limit ours. Moreover, a warrant would simply waste money, valuable resources, and time to protect the rights of a terrorist who is willing to risk their life to murder thousands of innocent people. In this scenario, the stakes are very high, and accordingly, rules must be broken. Rules have to be broken as a last resort. Even still, this case presents itself with the idea that one must do something bad to do something good, and legalizing torture warrants does not necessarily overcome the problems that they are meant to solve. Alternative to Torture Warrants: 55 Thompson, Dennis F. Political Ethics and Public Office. Harvard University Press Page 15.

31 31 In my opinion, the issue of legalizing torture is a red-herring. As an alternative, it is necessary to identify who is responsible for the torture of the terrorist. Instead of focusing on the authorization process, it is more important to focus on holding the torturer/s accountable. For this reason, I argue that democracies require a clear and discernible means for holding people authorized to torture accountable. I propose, that only in the case of the ticking time bomb, one person torture the terrorist and be tried in court afterward. A strength of my proposal is that it combines elements of those in favor of torturing, and those against torturing. For I agree that torture is morally justified in only this extreme emergency, but I also hold that torture not be legalized and institutionalized. 56 Considering the impracticality of Dershowitz s torture warrants, and that the circumstances of the ticking time bomb dictate the suspect will most likely be tortured because so many lives are at risk, I propose one person should be responsible for biting the bullet. This will be transparent. The authorizing agent needs to accept individual responsibility, come forward, and torture the terrorist to produce a valuable confession. Dennis Thompson notes: personal responsibility---offers a stronger foundation for democratic accountability. 57 However, he will be held legally accountable for his torturing, and will be consequently arrested and tried in court afterward. This way, we recognize he is breaking the law and shows torture is not condoned. He will be tried, 56 Torture. Stanford Encyclopedia of Philosophy. 7 February See Thompson supra note 53.

32 32 much like anyone else who commits a heinous crime, and will be subject to punishment. Despite that, if the torturer does produce a meaningful confession, this will have pull in the court and his actions (saving the lives of thousands of people) and may be justifiable. If the torturer does not produce a result, he will be disciplined by a jury. Either way, this will not lead us down a slippery slope, like Dershowitz s warrant that legally recognizes torture. My solution will produce results, save lives, and keep our current laws in tact. My solution will address problems raised by the time constraint argument. The time used to deliberate, gather evidence, locate a judge, and finally obtain a torture warrant can instead be used to learn the whereabouts of the bomb through torture. Since a warrant will not be needed, and since warrants can be legally overturned with the Emergency Clause, this allows more time to extract the needed information. This extra time could be the important determining factor while the suspect is being interrogated. My proposal is more likely to produce effective results thereby saving lives, while avoiding the dangers of recognizing a heinous practice as legitimate. Torture is horrible and degrading, and it should remain that way. Not only will my argument allow officials to have more time to produce the bomb s whereabouts, but it still preserves the moral prohibition against torture. I do not want torture to become normalized, and my solution will not allow it to become a legitimate practice of the status quo. Instead the moral responsibility of democracy requires punishing for their crime.

33 33 Only one person should take matters into their own hands, as so to minimize the breaking of the law/obstruction of justice. By one person being subject to punishment after torturing, this upholds our current laws against torture, and minimizes the criminal offenses committed to gain the bomb s location. It also allows transparency and holds him responsible. Warrants allow torture, and excuse the torturers, whereas if one person does not have a warrant and tortures, he will be tried and sentenced based on the outcomes. If the outcomes are substantial, the jury will choose a sentence that fits the crime. The US Constitution strictly prohibits inhumane and cruel practices. 58 On top of that, there are various international and domestic laws against torture, as previously shown. These laws should remain in place, and therefore, different retrospective factors of accountability could be used in this scenario. Once the bomb s location has been confirmed, there will be plenty of time to gather evidence and prove through probable cause that torture was an absolute necessity. Torture is a subject few people want anything to do with. Because of its terrible nature, it is more or less a taboo to even talk about. But the sad reality is that people are still tortured to this day. 59 However, when faced with such a horrible decision like the ticking time bomb scenario, it is hard for anyone to disagree torture should be used as a resort--- saving thousands of lives. The 58 Eight Amendment to the United States Constitution. 59 See Dershowitz supra note 8.

34 34 ticking time bomb may be the only acceptable circumstance to torture. But instead of normalization, have someone obscure their guilt, bite the bullet, and torture for democracy Yet without the ticking time bomb, torture should never be used, ever. Even more so, it should not be normalized. Dershowitz s proposal for torture warrants would change our legal system for the worse. His proposal to change the system would only bring problems. In his ticking time bomb scenario, one is faced with a horrible decision, and in order to be moral, the suspect should be tortured. But do not dilute the chain of command. His proposal for torture warrants should instead be locked away in a cabin somewhere deep in the woods, never to be thought of again. Torture harms people and the communities they live in, and its normalization would only bring further destruction. Instead, have an accountable approach.