July 30, 2016

Warrant to Torture?: A Critique of Dershowitz and Levinson

Last updated: July 29, 2008


Jonathan Allen

Published by Program in Arms Control, Disarmament, and International Security (ACDIS), University of Illinois at Urbana-Champaign

ACDIS Occasional Paper series
January 2005

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[from the author's Introduction] The view that torture is morally impermissible has been virtually unchallenged in the West for the past two centuries. In the aftermath of the attacks on the World Trade Center, it is clear that this taboo has been significantly eroded. While the attacks of September 11, 2001, may have affected the frequency with which torture is practiced, particularly by agents of constitutional democracies, their clearest consequence has been to increase people’s willingness to defend the practice explicitly on moral grounds. If the anti-torture conventions of the past were the homage rendered by vice to virtue, a growing number of people seem to think that frankness about torture, and about the need to practice it, is preferable. This new frankness is visible across the political spectrum—indeed, one of the most prominent defenders of the justifiability of legalizing certain forms of state torture is Alan Dershowitz, a noted civil rights lawyer and professor of law at Harvard University. Sanford Levinson, too, has defended a view very close to that of Dershowitz in a recent Dissent forum on the topic.

Both Dershowitz and Levinson advance nuanced arguments, and indicate that they are motivated by a desire to reduce actual instances of torture. I cannot deny that the current threat of terrorism makes it necessary for constitutional democracies to consider seriously the need to commit a range of evils in order to prevent or minimize great calamities. While it may be true in general that hard cases make bad law, the present context requires morally serious people to discuss explicitly a range of hard choices that may have to be made. We are unfortunately well beyond the point where discussion of state torture can simply be rejected as inadmissible.