torture warrant." Such a procedure would require judges to dirty their hands by authorizing
torture warrants or bear the responsibility for failing to do so. Individual interrogators should not
have to place their liberty at risk by guessing how a court might ultimately decide a close case.
They should be able to get an advance ruling based on the evidence available at the time.
In response to the decision of the Supreme Court of Israel, it was suggested that the
Knesset - - Israel’s Parliament - - could create a procedure for advance judicial scrutiny, akin to
the warrant requirement in the Fourth Amendment to the United States Constitution. It is a
traditional role for judges to play, since it is the job of the judiciary to balance the needs for
security against the imperatives of liberty. Interrogators from the security service are not trained
to strike such a delicate balance. Their mission is single-minded: to prevent terrorism. Similarly,
the mission of civil liberties lawyers who oppose torture is single-minded: to vindicate the
individual rights of suspected terrorists. It is the role of the court to strike the appropriate
balance. The Supreme Court of Israel took a giant step in the direction of striking that balance.
But it - or the legislature - should take the further step of requiring the judiciary to assume
responsibility in individual cases. The essence of a democracy is placing responsibility for
difficult choices in a visible and neutral institution like the judiciary.
Issues of this sort are likely to arise throughout the world, including in the United States,
in the aftermath of the World Trade Center disaster. Had law enforcement officials arrested
terrorists boarding one of the airplanes and learned that other planes, then airborne, were headed
toward unknown occupied buildings, there would have been an understandable incentive to
torture those terrorists in order to learn the identity of the buildings and evacuate them. It is easy
to imagine similar future scenarios.