48 Mark Washofsky

51. See the citation from Bilsky at note 45, above. One obvious way of arriving at this conclusion is the argument, advanced by Justice Kedmi in his concurring opinion(see note 32, above), that a state has a“natural right” to protect itself and its citizens. See as well the Landau Commission Report, cited below at note 61, which argues for the allowance of a moderate level of physical pressure in the interrogation of security detainees.

52. Alan M. Dershowitz ,“The Torture Warrant: A Response to Professor Strauss,” New York Law School Law Review 48(2003), 275-294. The citation is at 277: the italics are in the original. For a more extended discussion see Alan M. Dershowitz , Why Terrorism Works: Understanding the Threat, Responding to the Challenge (New Haven : Yale University Press , 2002), 131-163.

53. Dershowitz goes on to cite numerous examples of the use of torture methods by the United States and its allies against terrorism suspects.

54.“While we abhor the detailed medieval codes and procedures on torture, we ought to recognize that the practice remains. By refusing to discuss torture, we do not make it go away; we drive it underground”; Oren Gross,“Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience,” Minnesota Law Review 88(2003-2004), at 1554.

55. See Luban(note 38, above); Strauss(note 12, above); Seth F. Kreimer,“Too Close to the Rack and the Screw: Constitutional Constraints on Torture in the War on Terror,” University of Pennsylvania Journal of Constitutional Law 6(2003), 278-325; Jeremy Waldron ,“Torture and Positive Law,” Columbia Law Review 105 (2005), 1681-1750; John Kleinig,“Ticking Bombs and Torture Warrants,” Deakin Law Review 10(2005), 614-627. Jeffrey F. Addicott,“Into the Star Chamber: Does the United States Engage in the Use of Torture or Similar Illegal Practices in the War on Terror?” Kentucky Law Journal 92(2003-2004), 849-912, seeks a balanced approach that recognizes the need to infringe on some civil liberties during a time of threat to national security but insists that torture be outlawed.

56. See Memorandum from John C. Yoo , Deputy Assistant Attorney General . U.S. Department of Justice Office of Legal Counsel , to Alberto R. Gonzales , Counsel to the President(August 1, 2002), Karen J. Greenberg and Joshua L. Dratel, eds., The Torture Papers: The Road to Abu Ghraib(New York : Cambridge University Press , 2005), 172ff. Yoo is currently a professor at the University of California Law School. The head of the Office of Legal Counsel , who signed the memo, was Jay Bybee, now a judge on the Ninth Circuit U.S. Court of Appeals. See also Mirko Bagaric and Julie Clarke,“Not Enough Official Torture in the World? The Circumstances in Which Torture Is Morally Justifiable,” University of San Francisco Law Review 39(2004-2005), 581-616.

57. On the following discussion see Michael Sandel , ed., Liberalism and Its Critics (New York : NYU Press , 1984). I employ a somewhat different terminology than does Sandel . He uses the word“liberal” to denote the rights-based theory of ethics, founded upon Immanuel Kant ’s rejection of utilitarianism. The opposing point of