REVENTING TERRORISM often requires a choice of evils: to target terrorists

and their leaders, knowing civilians will be killed; to collect massive amounts
of private data in an effort to track terrorists; to detain potential terrorists
without trial. But perhaps no choice of evils is more controversial than the use
of torture to secure real-time intelligence against imminent acts of terrorism.
Is there ever a justification for the use of torture?
What if a captured terrorist bragged that he knew the location of a ticking
nuclear weapon in a large city and refused to disclose it?
What if a child were kidnapped, as occurred in Germany several years ago, and
the kidnapper was apprehended and refused to disclose where he had
supposedly buried the child with only a few hours of air?
These sorts of cases some real, others hypothetical have been at the
center of the debate that began in this country following the terrorist attacks
on Sept. 11, 2001, over whether it is ever justified to use torture in an effort to
prevent significant harms, including mass casualty terrorist attacks.
Several basic positions have emerged. The first is that regardless of the feared
harm, torture should never be used. In support of this absolutist view it is
sometimes argued that torture never works, because a tortured person will tell
the torturer anything to stop the pain. This is a factual assertion that is
difficult to prove. Although torture has produced many false confessions, it
has also played a role in uncovering some self-proving truthful statements,
such as the locations of bombs, plans, or people. The reality is that torture may
sometimes work, but that no statement made under torture should ever be
believed unless it is self-proving or corroborated by hard evidence.
A related argument acknowledges that torture may sometimes produce selfproving, valuable, real-time information, but that there are better methods for
securing such information than by torture. This may well be true, but it

doesnt provide a complete rebuttal to the counter-argument that in a given

case, torture may be the only or best tactic for saving lives.
If there are, in fact, such cases, then we have to face up to the conflict between
the moral and the factual: Should torture, as a moral matter, be permitted in a
case where, as a factual matter, it may save lives?
Proponents of the use of torture in such cases argue that saving lives has a
higher value than avoiding infliction of pain, especially where the lives are
innocent and where the pain would be inflicted on guilty terrorists. Jeremy
Bentham constructed a trenchant law school hypothetical case in support of
his view that based on a cost/benefit analysis, torture should sometimes be
permitted. Bentham imagined a gang of torturers who, if they remained at
liberty, would torture 100 innocent victims. He then asked whether it would
be moral to torture one guilty member of that gang to make known the place
where the other torturers could be found and apprehended, and thus save 100
innocent victims from torture. His answer was yes, based on the greatest good
for the greatest number.
President Bill Clinton gave a similar answer: Every one of us can imagine the
following scenario. We get lucky and we get the number three guy in Al Qaeda,
and we knew theres a big bomb going off in America in three days and this
guy knows where it is. Dont we have the right and the responsibility to beat it
out of him?
He then pulled back when his wife disagreed with him. Obama agreed with
Hillary Clinton that there should be an absolute prohibition against torture,
even if there is a a ticking bomb a situation we have, fortunately, not faced.
My own view is the same as Obamas and Hillary Clintons. As a moral matter,
I am categorically opposed to torture, without exception. But as a factual
matter, I think every president would at least consider the option of torture if
confronted with an actual ticking bomb. President Clinton said he would

consider torture and President George W. Bush actually authorized the use of
waterboarding, even in non-ticking bomb situations. Bush denied that
waterboarding and other forms of extreme interrogation measures he
approved were torture, but they would seem to fit any reasonable definition of
that term.
If Im right, and if every president would, in fact, consider opting for the
torture of one terrorist rather than permitting thousands of innocent
Americans to be blown up, then the following question must be asked: Would
it be better or worse for a law to be passed requiring the president to secure a
warrant before (or, in a real emergency, during or right after) he could employ
this drastic measure? Such a law would implicitly legitimate torture in
extreme situations, and thats a bad thing, but it would also create visibility
and accountability, which is a good thing.
Once again, we are faced with a terrible choice of evils.

I wish no one would ever torture, but Im sure some will if the ticking bomb
situation were ever to arise. Thats why I favor torture warrants.

My own view which is controversial among liberal and conservatives alike

is that, on balance, visibility and accountability are essential to democracy,
even if it means lending some legitimacy to an immoral and despicable tactic
such as torture. I wish no one would ever torture, but Im sure some will if the
ticking bomb situation were ever to arise. Thats why I favor torture warrants.
Such is the nature and complexity of principled decision-making when
confronting the evils of terrorism within the rule of law. There are no perfect
answers, but some are worse than others. In such situations, democratic
accountability suggests that we should generally opt for the least-worst

approach that is most compatible with both the rule of law and the realities of
terrorism.

Alan M. Dershowitz is an emeritus professor of law at Harvard University. His newest

e-book, Terror Tunnels: The Case For Israels Just War Against Hamas, has just
been published.

Footnote: Alan Dershowitz, "Torture As A Tool In Fight Against Terrorist Groups Like
ISIS? - The Boston Globe", Bostonglobe.Com, last modified 2014, accessed
December 24, 2015, https://www.bostonglobe.com/opinion/2014/09/17/torture-toolfight-against-terrorist-groups-like-isis/1Tfqfk1Amck7Rh9kEra8IN/story.html.
Bibliography: Dershowitz, Alan. "Torture As A Tool In Fight Against Terrorist Groups
Like ISIS? - The Boston Globe". Bostonglobe.Com. Last modified 2014. Accessed
December 24, 2015. https://www.bostonglobe.com/opinion/2014/09/17/torture-toolfight-against-terrorist-groups-like-isis/1Tfqfk1Amck7Rh9kEra8IN/story.html.