Minnesota Law Review
May torture ever be morally or legally permissible? In Why Terrorism Works, Professor Alan Dershowitz makes two important claims. First, he rejects the notion that a prohibition on torture ought to be absolute. Second, in an attempt to limit the use of torture and maximize civil liberties Dershowitz suggests the mechanism of judicial torture warrants as a prerequisite to torturing suspected terrorists in interrogations. This article challenges both of Dershowitz's propositions by introducing two interlinked claims based on concepts of pragmatic absolutism and official disobedience. I argue that an absolute legal ban on torture ought to be maintained. However, in truly catastrophic cases the appropriate method of tackling extremely grave national threats may call for going outside the legal order. The way to deal with the extreme or catastrophic case is neither by ignoring it nor by using it as the center-piece for establishing general policies. Rather, the focus is on the possibility that truly exceptional cases may give rise to official disobedience: Public officials may act extralegally and be ready to accept the legal ramifications of their actions. Whereas Dershowitz argues that torture may be both morally and legally permissible under certain circumstances, I suggest that even if we recognize that torture may be morally defensible in exceptional cases, that fact should not affect an uncompromising legal ban on torture. The debate about the moral and legal nature of the prohibition on torture has followed the fault lines separating deontologists and consequentialists. The article introduces the two opposing perspectives and suggests that the picture is more complex than either camp would have us believe. It argues that the case for an absolute prohibition on torture can be made stronger and more compelling by wedding together non-consequential and pragmatic claims. The article goes on to suggest that catastrophic cases present open-minded absolutists with a dilemmatic choice and argues the case for official disobedience as a mechanism to address that tragic choice. Catastrophic cases may entail public officials going outside the legal order, at times violating otherwise accepted constitutional principles. It is then up to society as a whole to decide how to respond ex post to extralegal actions undertaken by these officials. The article explains the advantages of such ex post ratification and suggests that a method of ex post ratification is preferable to ex ante judicial approval of interrogational torture.
Oren Gross, Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience, 88 Minn. L. Rev. 1481 (2004), available at https://scholarship.law.umn.edu/faculty_articles/897.