ticking bomb case: namely, that the ticking bomb must be permitted to explode and kill dozens,
perhaps hundreds, of civilians, even if this disaster could be prevented by subjecting the captured
terrorist to non-lethal torture and forcing him to disclose its location. I realized that the
extraordinarily rare situation of the hypothetical ticking bomb terrorist was serving as a moral,
intellectual, and legal justification for the pervasive system of coercive interrogation, which ,
though not the paradigm of torture, certainly bordered on it. It was then that I decided to
challenge this system by directly confronting the ticking bomb case. I presented the following
challenge to my Israeli audience: If the reason you permit non-lethal torture is based on the
ticking bomb case, why not limit it exclusively to that compelling but rare situation? Moreover,
if you believe that non-lethal torture is justifiable in the ticking bomb case, why not require
advanced judicial approval – a “torture warrant”? That was the origin of the controversial
proposal that has received much attention, largely critical, from the media. Its goal was, and
remains, to reduce the use of torture to the smallest amount and degree possible, while creating
public accountability for its rare use. I saw it not as a compromise with civil liberties but rather
as an effort to maximize civil liberties in the face of a realistic likelihood that torture would, in
fact, take place below the radar screen of accountability.
The Israeli government and judiciary rejected my proposal. The response, especially of
Israeli judges, was horror at the prospect that they - - the robed embodiment of the rule of law - -
might have to dirty their hands by approving so barbaric a practice in advance and in specific
cases.
The Landau Commission established by the Israeli government in 1987 to explore these
issues, also rejected my proposal. Instead it suggested that there are "three ways for solving this
grave dilemma between the vital need to preserve the very existence of the state and its citizens,
and to maintain its character as a law-abiding State." These are (1) to allow the security service
to continue to fight its war against terrorism in "`a twilight zone' which is outside the realm of
law" (2) "the ... way ... of the hypocrites: they declare that they abide by the rule of law, but turn
a blind eye to what goes on beneath the surface"; and (3) "the truthful road of the rule of law,"
namely, that the "law itself must ensure a proper framework for the activity of the GSS [the
Israeli security agency responsible for counterterrorism] regarding Hostile Terrorist Activity."
It is not surprising that when the choices are put that way, the conclusion necessarily
follows that "there is no alternative but to opt for the third way." The real question was whether a
legal system could honestly incorporate the extraordinary actions of the GSS without becoming
so elastic as to also invite other kinds of abuses.
The commission's answer to this question was problematic. In seeking to rationalize the
interrogation methods deemed necessary by the GSS, the commission attached "great
importance" to the legal defense of "necessity." The defense of necessity is essentially a "state of
nature" plea. If a person finds himself in an impossible position requiring him to choose between
violating the law and preventing a greater harm, such as the taking of innocent life - and he has
no time to seek re-course from the proper authorities - society authorizes him to act as if there
were no law. In other words, since society has broken its part of the social contract with him,
namely, to protect him, it follows that he is not obligated to keep his part of the social contract,
namely, to obey the law. Thus, it has been said that "necessity knows no law."
It is ironic, therefore, that in an effort to incorporate the interrogation methods of the GSS
into “the law itself,” the commission selected the most lawless of legal doctrines - - that of
necessity - - as the prime candidate for coverage.
The Israeli law of necessity is particularly elastic and open-ended. It provides: