Following the terrible events of September 11th and the reported use of rough
interrogation techniques - - “torture lite” - - by American military and civilian officials, I tried to
start a debate about the concept of a torture warrant in this country. In proposing some kind of
advanced approval for the use of limited force in extreme situations, I deliberately declined to
take a position on the normative issue of whether I would personally approve of the use of nonlethal
torture against a captured terrorist who refuses to divulge information deemed essential to
prevent an avoidable act of mass terrorism, though I did set out the argument in favor of (and
against) it. I sought a debate about a different, though related, issue: if torture would, in fact be
employed by a democratic nation under the circumstances, would the rule of law and principles
of accountability require that any use of torture be subject to some kind of judicial (or perhaps
executive) oversight (or control)? On this normative issue, I have expressed my views loudly
and clearly. My answer, unlike that of the Supreme Court of Israel, is “yes.” To elaborate, I
have argued that unless a democratic nation is prepared to have a proposed action governed by
the rule of law, it should not undertake, or authorize, that action. As a corollary, if it needs to
take the proposed action, then it must subject it to the rule of law. Suggesting that an after-thefact
“necessity defense” might be available in extreme cases is not an adequate substitute for
explicit advance approval.
The possible case of a ticking-bomb terrorist or terrorist with weapons of mass
destruction has provided a justification for a persuasive and unregulated use of torture (or other
forms of rough interrogation) by American officials, just as it had in Israel. Few are prepared to
give up use of that option in really extreme cases. Instead of expressly limiting its use to such a
case - - and regulating it by procedural controls - - many argue that is better to leave it to the
“discretion” of law enforcement officials. A sort of “don’s ask, don’t tell” policy has emerged