Torture, Terrorism, and the Halakhah 31

of pikuach nefesh, to refuse to act as an accessory to murder. We, therefore, cannot simply dismiss Warhaftig’s narrative as the product of an obscurantist medieval mind. Nor, I think, can we liberals glibly assert that we would never countenance torture in any situation, no matter the cost to life and safety. Let us imagine a true“ticking time-bomb” case. The police have taken a suspect into custody. They are reasonably certain that he possesses information that could foil a terrorist strike that is planned for one hour from now. If he reveals those details, hundreds of lives will be saved, but the only way to convince him to talk is through the application of severe physical pressure. Are we absolutely confident that, were our opinion sought, we would not approve(or, at the very least, fail to protest) the use of torture in that situation? Even if we stubbornly insist that we would never say yes to torture, even in a “ticking time-bomb” situation, we might, nonetheless, concede that torture is bound to happen under extreme circumstances, even in the most liberal and civil-rights oriented societies. If such is the case, then realism might counsel that the issue is not how to do away with torture but how best to control and limit its occurrence. As Alan Dershowitz , who has written extensively on the subject, puts it:*’

[ am generally against torture as a normative matter, and I would like to see its use minimized. I believe that at least moderate forms of non-lethal torture are in fact being used by the United States and some of its allies today.” I think that if we ever confronted an actual case of imminent mass terrorism that could be prevented by the infliction of torture we would use torture, (even lethal torture), and the public would favor its use. That is my empirical conclusion. It is either true or false, and time will probably tell.

Given that torture, to some extent, is inevitable in the face of the threat that terrorism poses to public safety, Dershowitz calls for the introduction of a“terrorism warrant,” a legal device that would regularize the use of such methods of interrogation and subject them to judicial supervision. In the absence of such a warrant, he contends, torture will simply be driven underground, and security forces will resort to it in secret without any possibility of control by the courts.’ A number of legal scholars have criticized Dershowitz over this position,” but others have gone beyond him, defending the torture of terrorism suspects and drafting legal arguments to permit it.” If lawyers in a liberal society that is ostensibly committed to the protection of human and civil rights