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885

TORTURE WARRANTS AND THE RULE OF LAW

John T. Parry*

On November 8, 2001, Alan Dershowitz published an opinion piece in the Los Angeles Times under the title, “Is There a Torturous Road to Justice?”1 The column responded to news reports that federal officials were exploring their authority to use coercive methods to obtain information from people who might have knowledge about the 9/11 attacks or other past or planned “terrorist” incidents.2 After discussing the ways in which the privilege against self-incrimination and other constitutional rights fail to provide clear protection against coercive interrogation, Dershowitz asked whether a judge could issue a warrant that would authorize investigators to use torture. Using the due process “shocks the conscience” test,3 he suggested that a “torture warrant” could issue in “the rare ‘ticking bomb’ case,” but he also stressed that this conclusion was “very troubling.” The last part of the column gave reasons why U.S. officials might nonetheless opt for warrants. The primary reason, he suggested, was that they will use torture in such a situation anyway, and that “[i]f we

* Professor, Lewis & Clark Law School. This Essay is a revised version of a paper I delivered on April 5, 2007 at Albany Law School’s Conference on the Work and Scholarship of Alan Dershowitz. My thanks to Paul Finkelman for inviting me, to Alan Dershowitz and John Kroger for helpful comments, and to Mathew Waschuk for research assistance.

1 Alan M. Dershowitz, Is There a Torturous Road to Justice?, L.A. TIMES, Nov. 8, 2001, at B19.

2 See Walter Pincus, Silence of 4 Terror Probe Suspects Poses Dilemma for FBI, WASH. POST, Oct. 21, 2001, at A6; see also Jim Rutenberg, Torture Seeps Into Discussion by News Media, N.Y. TIMES, Nov. 5, 2001, at C1.

3 For cases on the “shocks the conscience” test, see Chavez v. Martinez, 538 U.S. 760 (2003); County of Sacramento v. Lewis, 523 U.S. 833 (1998); Rochin v. California, 342 U.S. 165 (1952). For discussion of the test, see generally Robert Chesney, Old Wine or New? The Shocks-the-Conscience Standard and the Distinction Between Legislative and Executive Action, 50 SYRACUSE L. REV. 981 (2000); John T. Parry, Constitutional Interpretation, Coercive Interrogation, and Civil Rights Litigation After Chavez v. Martinez, 39 GA. L. REV. 733 (2005) [hereinafter Parry, Constitutional Interpretation].


886 Albany Law Review [Vol. 71

are to have torture, it should be authorized by the law.”4

The torture warrant proposal generated immediate reaction in the legal community, most of it negative. Dershowitz stood by his proposal in later writings, most notably in his book Why Terrorism Works.5 He also took care to stress on numerous occasions—most recently in a March 25, 2007 letter to the New York Times—that he opposes torture and believes a warrant regime would result in less torture than the often ad hoc, off-the-books approach of the Bush administration.6 As revelations began to pile up about abuse of prisoners at Abu Ghraib, Guantánamo Bay, and other places—abuse that at least sometimes amounted to torture—his prediction became harder to deny.

My goal in this Essay is not to evaluate the merits of Dershowitz’s proposal.7 I agree with him that the U.S. Constitution provides much less protection against torture and other abusive practices than people likely would expect.8

4 See Dershowitz, supra note 1, at B19. 5 See ALAN M. DERSHOWITZ, WHY TERRORISM WORKS: UNDERSTANDING THE THREAT,

RESPONDING TO THE CHALLENGE 131–63 (2002); see also ALAN M. DERSHOWITZ, SHOUTING FIRE: CIVIL LIBERTIES IN A TURBULENT AGE 476–77 (2002); Alan Dershowitz, Tortured Reasoning, in TORTURE: A COLLECTION 257 (Sanford Levinson ed., rev. ed. 2004) [hereinafter Dershowitz, Tortured Reasoning]; Alan M. Dershowitz, The Torture Warrant: A Response to Professor Strauss, 48 N.Y.L. SCH. L. REV. 275 (2004); Alan Dershowitz, Stars or Stripes: A Choice Among Evils, TORONTO GLOBE & MAIL, May 3, 2003, at A17; Alan M. Dershowitz, Torture and Accountability, L.A. TIMES, Oct. 17, 2006, at B13; Alan M. Dershowitz, Commentary, Painful Moral Questions, L.A. TIMES, Apr. 17, 2003, at B15; Alan M. Dershowitz, Op-Ed., Yes, It Should Be ‘On the Books’, BOSTON GLOBE, Feb. 16, 2002, at A15; Alan M. Dershowitz, Editorial, Want to Torture? Get a Warrant, S.F. CHRON., Jan. 22, 2002, at A19.

6 Alan Dershowitz, Letter to the Editor, When Torture is Normalized, N.Y. TIMES, Mar. 27, 2007, at A18 (responding to Slavoj Žižek, Editorial, Knight of the Living Dead, N.Y. TIMES, Mar. 24, 2007, at A13).

7 For debate over torture warrants, see Richard A. Posner, Torture, Terrorism, and Interrogation, in TORTURE: A COLLECTION, supra note 5, at 291, 296–97; Rory Stephen Brown, Torture, Terrorism, and the Ticking Bomb: A Principled Response, 4 J. INT’L L. & POL’Y 4:1 (2007); Russell D. Covey, Interrogation Warrants, 26 CARDOZO L. REV. 1867 (2005); Oren Gross, Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience, 88 MINN. L. REV. 1481 (2004); Markus Wagner, The Justification of Torture. Some Remarks on Alan M. Dershowitz’s Why Terrorism Works, 4 GERMAN L.J. 515 (2003); Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 COLUM. L. REV. 1681 (2005).

8 See Parry, Constitutional Interpretation, supra note 3, at 819–29; John T. Parry, Terrorism and the New Criminal Process, 15 WM. & MARY BILL RTS. J. 765, 797–822 (2007) [hereinafter Parry, Terrorism]; see also Marcy Strauss, Torture, 48 N.Y.L. SCH. L. REV. 201, 216–51 (2004) (reaching a similar conclusion).


2008] Torture Warrants and the Rule of Law 887

I am also already on record in favor of an ex post approach to the problem of interrogational torture—meaning that I believe that after-the-fact application of doctrines such as the necessity defense provides the best way to address the very rare instances in which torture could be justified.9 Among other things, I worry that an ex ante approach such as a torture warrant could encourage abuse and dilute the fragile force of the ban on torture both in national and international law and practice.10 By contrast, I think that the inherent uncertainty of the ex post approach (what Dan Kahan calls “prudent obfuscation”) would deter officials considering torture and allow rare exceptions at the same time that it maintained the general rule of no torture.11

That said, and despite my disagreement with it, the fact remains that the torture warrant version of the ex ante approach is plainly logical.12 One arguable advantage is that

9 John T. Parry & Welsh S. White, Interrogating Suspected Terrorists: Should Torture Be an Option?, 63 U. PITT. L. REV. 743, 748 (2002). For other examples of the ex post approach, see Posner, supra note 7, at 296–98; Gross, supra note 7, at 1551–53; Michael S. Moore, Torture and the Balance of Evils, 23 ISR. L. REV. 280 (1989). Henry Shue once took a similar view, see Henry Shue, Torture, in TORTURE: A COLLECTION, supra note 5, at 47, 56–58, but he now rejects any possibility of justifying torture, see Henry Shue, Torture in Dreamland: Disposing of the Ticking Bomb, 37 CASE W. RES. J. INT’L L. 231, 231 (2006) [hereinafter Shue, Torture in Dreamland]; see also Michael Ignatieff, Moral Prohibition at a Price, in TORTURE: DOES IT MAKE US SAFER? IS IT EVER OK?: A HUMAN RIGHTS PERSPECTIVE 18, 25 (Kenneth Roth & Minky Worden eds., 2005) (declaring with reservations that the necessity defense “is the only solution that I can see that remains consistent with an absolute ban on torture and stress-and-duress coercive interrogation”). For discussions of the ex ante/ex post debate in law, with special reference to the problem of torture, see Yael Aridor Bar-Ilan, Justice: When Do We Decide?, 39 CONN. L. REV. 923 (2007); Sanford Levinson, “Precommitment” and “Postcommitment”: The Ban on Torture in the Wake of September 11, 81 TEX. L. REV. 2013 (2003). For criticisms of the ticking bomb hypothetical that often drives discussion of how to apply the necessity defense to torture, see David Luban, Liberalism, Torture, and the Ticking Bomb, 91 VA. L. REV. 1425 (2005); Kim Lane Scheppele, Hypothetical Torture in the “War on Terrorism”, 1 J. NAT’L SECURITY L. & POL’Y 285 (2005); Shue, Torture in Dreamland, supra.

10 See Sanford H. Kadish, Torture, the State, and the Individual, 23 ISR. L. REV. 345, 352 (1989) (referring to the “painfully won and still fragile consensus” against torture). For an ex ante approach that would employ warrants and other legal rules, see Eric A. Posner & Adrian Vermeule, Should Coercive Interrogation be Legal?, 104 MICH. L. REV. 671 (2006).

11 See Parry & White, supra note 9, at 764 n.95 (citing Dan M. Kahan, Ignorance of Law is an Excuse—But Only for the Virtuous, 96 MICH. L. REV. 127, 137–41 (1997)).

12 For similar assessments, see Levinson, supra note 9, at 2043–50; Jesselyn Radack, Discussing a Taboo—A Review of Torture: A Collection, 14 TEMP. POL. & CIV. RTS. L. REV. 609, 626–27 (2005). Darius Rejali takes the warrant proposal seriously for a different reason: it might help create an archive that would settle the issue of whether torture works. See DARIUS REJALI, TORTURE AND DEMOCRACY 523 (2007). He is confident that the results would confirm that torture does not work well, and he ultimately rejects the idea of warrants. See



the warrant puts additional and different layers between the interrogator and the prisoner. Under a warrant regime, interrogators or their commanding officers cannot simply decide to use coercion. Instead, investigators must convince government attorneys that there is a basis for using coercion, and the attorneys may have to convince their colleagues or supervisors. Further, the attorneys must then apply for a warrant and convince a judge that signing the warrant would be appropriate. These additional layers of process and the involvement of two branches of the federal government might result in less abuse, as Dershowitz claims. That result would be particularly likely if judges were to treat the request for a torture warrant as requiring closer examination than an ordinary search or arrest warrant. The warrant version of the ex ante approach also includes an element of the prudent obfuscation that I just championed. Rather than permitting torture through the enactment of statutes or the drafting of regulations, the decision to issue a warrant likely would involve a totality of the facts and circumstances approach, so that one case would not necessarily be a meaningful precedent for future cases.13 Further, the ex post approach that I support has flaws of its own, perhaps the most significant of which is that it only works if we actually prosecute the people who torture.14 The possibility that prosecutors—or their superiors—would use their discretion not to pursue criminal cases risks moving us from the sometimes formless necessity defense to an entirely ad hoc and unreviewable approach little different from the status quo.15

id. at 446–518, 529. 13 Richard Posner believes the torture warrant would result in the promulgation of rules,

which in turn would create incentives “to explore the outer bounds of the rules.” Posner, supra note 7, at 296. Posner is correct that a warrant approach is more likely to create torture rules than an approach that relies entirely on executive discretion to break the law in extreme cases, but it is equally true that warrants would create fewer rules than enactment of a torture statute or the promulgation of torture regulations. Further, as Posner recognizes, executive discretion will also lead to efforts to test the outer bounds. See id. at 297–98; see also Parry & White, supra note 9, at 763 (discussing the slippery slope problem in the torture context).

14 See Parry & White, supra note 9, at 765 (insisting on mandatory prosecution if there is to be a necessity defense to torture).

15 For sources on the general failure of states to prosecute their own officials for torture,



Rather than extend this discussion of the pros and cons of torture warrants, I want instead to explore some of the jurisprudential and theoretical stakes that this debate presents. One way of getting at this issue is to ask why Dershowitz’s opponents are so vehement in their criticisms—criticisms that seem often to be aimed as much at him as at the proposal itself.16 One possible explanation is a belief about the nature of torture. Torture, we are often told, is particularly bad and ranks with genocide in a special category of the very worst crimes.17 For reasons that I have explained elsewhere, I find this characterization of torture to be very troubling, perhaps even pernicious, in part because it tends to legitimate “lesser” but far more pervasive forms of state violence and domination, or at least suggests that they are less worrisome than torture.18

Even putting that issue to one side, Dershowitz has explained repeatedly that he does not support torture. In fact, his proposal, if adopted, might not authorize as much coercion as has already taken place, and might not even allow as much as other “moderate” approaches, such as the one put forward by a Kennedy School working group which endorsed coercion in some instances.19 He plainly does not go as far as Mirko

see Levinson, supra note 9, at 2045–46, 2046 n.143, and see also Josh White, Army Officer is Cleared in Abu Ghraib Scandal, WASH. POST, Jan. 10, 2008, at A6 (reporting that “[t]he only Army officer charged with a crime as a result of the abuses at the Abu Ghraib prison in Iraq has been cleared of all criminal responsibility in the case”).

16 For Dershowitz’s own reflections on these criticisms and their tone, see Dershowitz, Tortured Reasoning, supra note 5, at 265–68, 272–75.

17 For holdings that the ban on torture is a jus cogens norm of international law, see, for example, Filartiga v. Pena-Irala, 630 F.2d 876, 884–85 (2d Cir. 1980); A v. Sec’y of State for the Home Dep’t [2005] UKHL 71, [2006] 2 A.C. 221, 259 (appeal taken from Eng.); Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Judgement, ¶¶ 137–39, 144 (Dec. 10, 1998), available at http://www.un.org/icty/furundzija/trialc2/judgement/fur-tj981210e.pdf. For skepticism about this claim in terms of what it says about the methodology for determining customary international law, see A. Mark Weisburd, Customary International Law and Torture: The Case of India, 2 CHI. J. INT’L L. 81 (2001). For a degree of skepticism about the scope of torture bans under international and U.S. law, see John T. Parry, “Just for Fun”: Understanding Torture and Understanding Abu Ghraib, 1 J. NAT’L SECURITY L. & POL’Y 253, 261–74 (2005) [hereinafter Parry, Just for Fun].

18 See Parry, Just for Fun, supra note 17, at 257–61. 19 PHILIP B. HEYMANN & JULIETTE N. KAYYEM, LONG-TERM LEGAL STRATEGY PROJECT FOR

PRESERVING SECURITY AND DEMOCRATIC FREEDOMS IN THE WAR ON TERRORISM 24–26 (2004), available at http://www.mipt.org/pdf/Long-Term-Legal-Strategy.pdf.



Bagaric and Julie Clarke, who argue that torture is easily justified in many instances under a thoroughgoing utilitarian analysis.20 Thus, Dershowitz clearly does not seek to open the floodgates of coercive interrogation, and the virulence of the criticism directed his way must have some other source.

To locate that source, we must return to the last paragraph of his original Los Angeles Times column: “Democracy requires accountability and transparency, especially when extraordinary steps are taken. Most important, it requires compliance with the rule of law. And such compliance is impossible when an extraordinary technique, such as torture, operates outside of the law.”21

Put simply, Dershowitz argued that the only way to comply with the rule of law in a democratic society is to forbid reliance on extralegal process and unreviewed discretion. If we are to torture, we should do so within the law, which means not only that we should talk about it but also that we should talk about the ways in which we might allow it. The problem for critics of the proposal, who of course also express adherence to the rule of law, is that this kind of transparency might lead to acceptance. If we talk about torture, and in particular if we give a legal form to what would otherwise be an always illegal action, then inevitably we will also legitimate it. This concern is, I think, what generates much of Jeremy Waldron’s criticism of the torture warrant.22

But then the question remains: What is to be done? The easy answer is simply not to torture or abuse people in government custody or under government control (and also not to hand them over to other governments willing to inflict

20 See MIRKO BAGARIC & JULIE CLARKE, TORTURE: WHEN THE UNTHINKABLE IS MORALLY PERMISSIBLE 28, 34–39 (2007).

21 Dershowitz, supra note 1, at B19. 22 See Waldron, supra note 7, at 1717. Slavoj Žižek, Oren Gross, and Jean Bethke Elshtain

express similar concerns but can be read to countenance torture under certain circumstances. See SLAVOJ ŽIŽEK, From Homo Sucker to Homo Sacer, in WELCOME TO THE DESERT OF THE

REAL!: FIVE ESSAYS ON SEPTEMBER 11 AND RELATED DATES 83, 103–04 (2002); Jean Bethke Elshtain, Reflection on the Problem of “Dirty Hands”, in TORTURE: A COLLECTION, supra note 5, at 77, 83–84; Gross, supra note 7, at 1512–19; see also Michael Walzer, Political Action: The Problem of Dirty Hands, in TORTURE: A COLLECTION, supra note 5, at 61, 64–65 (discussing an example of legitimizing torture).



that kind of treatment).23 Many people are deeply committed to this principle, and they have done a great deal of important work to publicize and restrict torture and obtain remedies or help for victims of torture. Indeed, I believe that people who really want to combat torture should engage in more direct responses—for example, in political action—and pay less attention to law. Law, after all, failed to control, and indeed was interpreted to license, the systematic abuse of people detained in the “war on terror.”24

The assertion that torture should not happen is normatively appealing and deceptively easy to invoke. Nonetheless, it falls short. The goal of ending torture and the effort to do so—whether those efforts are legal, political, or anything else—are emphatically not the same thing as what Harold Koh has called a “world without torture.”25 Nor do I think there is much chance of achieving that world. Torture continues to take place around the globe, sometimes as an isolated event, but often in a widespread or systematic manner.26 Even more important, there has never been a time in the modern era when the United States and other liberal democracies have not used torture or other closely related forms of abuse to

23 I discuss these practices in detail in John T. Parry, Torture Nation, Torture Law, 97 GEO. L.J. __ (forthcoming 2009).

24 See Jay S. Bybee, Assistant Attorney General, Memorandum for Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340–2340A (Aug. 1, 2002), in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB 172, 176 (Karen J. Greenberg & Joshua L. Dratel eds., 2005); Daniel Levin, Acting Assistant Attorney General, Memorandum for James B. Comey, Deputy Attorney General, Re: Legal Standards Applicable Under 18 U.S.C. §§ 2340–2340A (Dec. 30, 2004), in CTR. ON LAW & SEC., N.Y. UNIV. SCH. OF LAW, THE TORTURE DEBATE IN AMERICA 361, 367 (Karen J. Greenberg ed., 2006).

25 Harold Hongju Koh, A World Without Torture, 43 COLUM. J. TRANSNAT’L L. 641 (2005). 26 From 1997 to mid-2000, Amnesty International received reports of torture by state

agents in 150 countries, with at least eighty deaths, and it concluded that torture was “widespread or persistent” in more than seventy countries. AMNESTY INTERNATIONAL, TAKE A STEP TO STAMP OUT TORTURE (2000), http://web.amnesty.org/library/pdf/Act400132000English/$File/Act4001300.pdf; see also AMNESTY INTERNATIONAL, COMBATING TORTURE: A MANUAL FOR ACTION 2 (2003), http://www.amnesty.org/resources/pdf/combating_torture/combating_torture.pdf. The U.N.’s Special Rapporteur on the question of torture recently decried “continuing occurrences of the practice of corporal punishment, such as amputation, stoning, flogging and beating.” U.N. Econ. & Soc. Council [ECOSOC], Comm’n on Human Rights, Civil and Political Rights, Including the Questions of Torture and Detention, ¶ 11, U.N. Doc. E/CN.4/2006/6 (Dec. 23, 2005) (prepared by Manfred Nowak, Special Rapporteur).



achieve national goals.27

Consider three countries in Europe.28 Spain’s treatment of suspected Basque terrorists in the post-Franco era has sometimes involved torture and other forms of coercion.29 More pervasive is the conduct of France in Vietnam and especially Algeria, its willingness to send Basques to Spain where they have faced near certain abuse (a version, that is, of extraordinary rendition), and persistent complaints about its treatment of immigrants.30 Yet France’s use of torture is dwarfed by the efforts of the United Kingdom, whose officials routinely used torture and other abuse—the so-called five techniques, as well as other practices—to maintain its empire.31 Indeed, British officials also took care to ensure that coercive methods were part of their imperial legacy. According to Anandswarup Gupta, for example, when the U.K. withdrew from India, it left behind “a Police Force . . . which had been studiously trained in the use of brute force.”32 The worst was almost certainly the U.K.’s response to the Mau Mau rebellion in Kenya, in which hundreds of thousands of

27 Thus, I mean to dispute what can only be called the ideological assertions of writers such as Daniel Chirot, who asked rhetorically in 1994, “[W]hy do we not torture in the modern United States or Western Europe?” Daniel Chirot, Book Review, 23 CONTEMP. SOC. 678, 680 (1994) (reviewing DARIUS M. REJALI, TORTURE AND MODERNITY: SELF, SOCIETY, AND STATE IN MODERN IRAN (1993)); cf. Waldron, supra note 7, at 1683–84 (citing—apparently for its truth value—a 1911 entry in the Encyclopedia Britannica that “‘[t]he whole subject [of torture] is now one of only historical interest as far as Europe is concerned’” but also recognizing that torture has been an issue for contemporary liberal democracies).

28 For a general assessment of current European practices through an examination of European Court of Human Rights cases, see Fionnuala Ní Aoláin, The European Convention on Human Rights and Its Prohibition on Torture, in TORTURE: A COLLECTION, supra note 5, at 213, 220–23. For a more extensive discussion of torture by England, France, Spain, and also Israel, see John T. Parry, “Torture in the Modern West,” http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=899113 (Dec. 2005).

29 See PADDY WOODWORTH, DIRTY WAR, CLEAN HANDS: ETA, THE GAL AND SPANISH DEMOCRACY 8–9, 74–78 (2001); JOSEBA ZULAIKA & WILLIAM A. DOUGLASS, TERROR AND TABOO: THE FOLLIES, FABLES, AND FACES OF TERRORISM 198–212 (1996).

30 See PAUL AUSSARESSES, THE BATTLE OF THE CASBAH: TERRORISM AND COUNTER-TERRORISM IN ALGERIA 1955–1957 (2002); RITA MARAN, TORTURE: THE ROLE OF IDEOLOGY IN THE FRENCH-ALGERIAN WAR (1989); DOUGLAS PORCH, THE FRENCH SECRET SERVICES: FROM THE DREYFUS AFFAIR TO THE GULF WAR 381–84 (1995); WOODWORTH, supra note 29, at 180–82.

31 See ANTONIO VERCHER, TERRORISM IN EUROPE: AN INTERNATIONAL COMPARATIVE LEGAL ANALYSIS 66 (1992) (discussing the widespread use of the five techniques throughout the British Empire).

32 ANANDSWARUP GUPTA, THE POLICE IN BRITISH INDIA 1861–1947, at xix (1979).



people were imprisoned in camps and enormous numbers were put through the “Pipeline”—a euphemism for torture—to determine whether they had taken the Mau Mau oath.33 And, of course, there is the abuse and extrajudicial killing by U.K. officials of suspected I.R.A. members in Northern Ireland.34 Finally, we have the conduct of the United States in the Philippines, Vietnam, Central America, and now Afghanistan, Iraq, Guantánamo Bay, and possibly other places.35

Against this history, it is surprising that one almost never encounters liberal or progressive commentators who are willing to admit not only that the governments and social structures that make their lives possible have engaged in or supported torture and other abusive treatment, are still doing so, and probably always will, but also that few of the things for which they advocate will change those governments or structures in any fundamental way, including with respect to torture.36 Put differently, we easily assume that torture is contrary to the liberal tradition; what if we asked instead whether torture is part of that tradition? Even if we do not go

33 For a devastating account, see CAROLINE ELKINS, IMPERIAL RECKONING: THE UNTOLD STORY OF BRITAIN’S GULAG IN KENYA (2005).

34 See Ireland v. United Kingdom, 2 Eur. Ct. H.R. (ser. A) 25, 59–60, 79–80 (1978); JOHN CONROY, UNSPEAKABLE ACTS, ORDINARY PEOPLE: THE DYNAMICS OF TORTURE 4–8 (2000); JOHN STALKER, THE STALKER AFFAIR (1988); VERCHER, supra note 31, at 384–86; ZULAIKA & DOUGLASS, supra note 29, at 158; Britain Accused over Ulster Investigations: European Ruling Sidesteps Issue of Unlawful Killing but Questions Deaths After Long-Term Surveillance: Case Two, THE GUARDIAN (London), May 5, 2001, at 9; John Stalker, Guarded With the Truth, SUNDAY TIMES (London), Feb. 23, 1997, at 5.

35 On the Philippines, see BRIAN MCALLISTER LINN, THE PHILIPPINE WAR 1899–1902 (2000); STUART CREIGHTON MILLER, “BENEVOLENT ASSIMILATION”: THE AMERICAN CONQUEST OF THE PHILIPPINES, 1899–1903 (1982); Andrew J. Birtle, The U.S. Army’s Pacification of Marinduque, Philippine Islands, April 1900–April 1901, 61 J. MIL. HIST. 255 (1997). On Central America, see Timothy J. Kepner, Comment, Torture 101: The Case Against the United States for Atrocities Committed by School of the Americas Alumni, 19 DICK. J. INT’L L. 475 (2001). On Vietnam, see REJALI, supra note 12, at 581–91. See generally ALFRED W. MCCOY, A QUESTION OF TORTURE: CIA INTERROGATION, FROM THE COLD WAR TO THE WAR ON TERROR (2006) (discussing the United States’ history of using torture); MICHAEL OTTERMAN, AMERICAN TORTURE: FROM THE COLD WAR TO ABU GHRAIB AND BEYOND (2007) (same); Walter Pincus, Iraq Tactics Have Long History with U.S. Interrogators, WASH. POST, June 13, 2004, at A8 (discussing similarities between the torture methods used in Iraq and those described in a CIA training manual from the Vietnam Era).

36 To be clear, I use the word “liberal” here to refer to adherents of the liberal tradition in political theory, and I use the word “progressive” as a rough synonym—one that is at least better than “left”—for people whose substantive political positions and goals are often described as “liberal.”



so far—and I suspect few readers will37—we may at least have to accept that the best efforts of advocates and activists will never end the practice of torture and will never succeed in entirely delegitimating it. Reasons to torture will continue to arise, people with authority will often be willing to carry it out (or at least signal to others that they should do it), and at least some members of political communities will voice their approval or deliberately refrain from criticism. Torture, I am suggesting, is part of the fabric of modern legal and political life. It also follows that, if we believe we live in a society committed to and founded upon the rule of law, then the rule of law is no certain bulwark against torture, and faith that it could be is seriously misguided.38

If these things are the case—and I recognize that many readers will dispute these assertions—then the last paragraph of Dershowitz’s column is more than an abstract assertion. He quite reasonably takes the fact of state-sponsored torture as a given. Against that, he not only proposes torture warrants but also claims that the rule of law requires something like a torture warrant. In short, in response to the question of what is to be done, he focuses on what is already done, determines that it is likely to continue whether or not he likes it and regardless of the legal rules in place, and seeks to create new legal rules that he claims will generate better regulation—a position that is arguably consistent with a general opposition to torture.39

37 David Luban recognizes that interrogational torture for the purpose of “intelligence gathering in gravely dangerous situations” can be understood—incorrectly, in his view—as consistent with liberalism. See Luban, supra note 9, at 1436–39. Throughout his recent book, Darius Rejali gathers additional evidence that many democracies torture, and he analyzes the methods and preconditions for democratic torture. See REJALI, supra note 12.

38 I am not trying to caricature writers such as Luban, Shue, and Waldron, all of whom recognize that law cannot accomplish the goal of controlling or ending torture on its own. They discuss the ways in which torture is a “practice” or gives rise to a “culture,” and they understandably stress that banning torture requires commitments to something deeper than formal rules. See supra notes 9, 22–23 and accompanying text; infra notes 47, 51–53 and accompanying text.

39 Michael Ignatieff seems to take a similar view in his discussion—and eventual rejection—of the warrant idea. See MICHAEL IGNATIEFF, THE LESSER EVIL: POLITICAL ETHICS IN AN AGE OF TERROR 139–40 (2004). At the conference at which I presented this Paper, Dershowitz suggested that his position on torture is similar to that of people who oppose the death penalty but nonetheless advocate for better ways of carrying it out. See Posner &



What Dershowitz proposes—and what concerns his opponents—is a jurisprudence of torture. The primary question I want to address in the rest of this Essay is what it means to have, or not to have, such a jurisprudence. Doctrinally, torture is usually described as acceptable—if at all—only when it has the status of an exception, so that it is a creature of necessity.40 The most notable recent example of this approach is the Supreme Court of Israel’s 1999 decision in Public Committee Against Torture in Israel v. Israel, in which the court ruled that torture cannot be justified ex ante by the doctrine of necessity, but that it might be justifiable as necessary after the fact.41 In the United States, Chavez v. Martinez provides a related example. Three justices stated, with little effective opposition, that a coercive interrogation—one that Justice Stevens described as the functional equivalent of torture—did not “shock the conscience” because it was justified by the government’s need for information.42 Importantly, this idea of justification by necessity is not an outlier in U.S. law. Rather, the necessity approach is built

Vermeule, supra note 10, at 688–90 (conceding that torture is a moral evil but advocating rules for its use by analogy to rules for the use of deadly force by law enforcement officials). I am not sure how well the analogy holds. To the extent death penalty opponents seek more process before an execution takes place, those efforts are roughly, but not uncontroversially, analogizable to the torture warrant. To the extent death penalty opponents seek more humane methods of execution, I wonder whether the better analogy is not to torture warrants but to people who work to replace torture with less severe methods of interrogation—such as the Harvard proposal cited in note 19, supra, and discussed in accompanying text. In any event, I take Dershowitz’s point that one can advocate for better legal rules to govern something that one opposes. The effort plainly is not without legal and moral risk, but that risk alone will rarely be a good reason to keep silent.

40 For a slightly different justification analysis, see Miriam Gur-Arye, Can the War Against Terror Justify the Use of Force in Interrogations?: Reflections in Light of the Israeli Experience, in TORTURE: A COLLECTION, supra note 5, at 183, 183.

41 HCJ 5100/94 Pub. Comm. Against Torture in Isr. v. Israel [1999] IsrSC 53(4) 817, ¶¶ 33, 36–38, available at http://hei.unige.ch/~clapham/hrdoc/docs/terrorisraeljudgment.pdf. Although it signaled its approval of applying the necessity defense to cases of coercive interrogation, the court insisted that in normal cases interrogation methods must be reasonable, which includes a ban on the use of torture unless specifically authorized by law, id. ¶ 23, and it never ruled that the methods at issue in the case were torture, whether or not used in a situation of necessity. For extensive discussion of Public Committee, see John T. Parry, Judicial Restraints on Illegal State Violence: Israel and the United States, 35 VAND. J. TRANSNAT’L L. 73 (2002).

42 Chavez v. Martinez, 538 U.S. 760, 774–75 (2003). For Justice Stevens’ characterization, see id. at 783–84 (Stevens, J., concurring in part and dissenting in part). For extensive discussion of Chavez, see Parry, Constitutional Interpretation, supra note 3.



into the structure of U.S. constitutional law’s fundamental rights jurisprudence because the compelling interest prong of that analysis requires assessment of the government’s need to engage in conduct that, otherwise, might violate rights.43

At the same time, however, the idea of a necessity defense—and by extension any doctrine premised on necessity, including the ability to overcome rights claims—remains a perennial topic of debate precisely because it does not seem amenable to an ordinary jurisprudence. Writers such as Francis Allen have complained that necessity licenses ad hoc departures from legal rules, and the Supreme Court recently described the defense as “controversial.”44 Further, when applied to the conduct of state actors, the choice of evils analysis that forms the centerpiece of the necessity doctrine becomes skewed in favor of the government’s asserted interests.45 Small wonder, then, that the use of necessity claims by governments has led to non-derogation clauses in multilateral human rights conventions such as the International Covenant on Civil and Political Rights and the Convention Against Torture.46 These clauses are designed explicitly to offset and nullify necessity claims that would justify otherwise forbidden state violence in cases of “need.”

My point here is that contemporary legal doctrine seems to permit torture, if at all, only in a situation of necessity, at a

43 See, e.g., Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (describing the compelling interest prong of the strict scrutiny test).

44 United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 490 (2001); FRANCIS A. ALLEN, THE HABITS OF LEGALITY: CRIMINAL JUSTICE AND THE RULE OF LAW 22 (1996); see also United States v. Jacobs, 704 F. Supp. 629, 630 (E.D.N.C. 1988) (“Chaos and anarchy would inevitably result if the necessity defense were permitted to justify any effective means to a desired end.”). Still, numerous federal and state court cases have considered the defense, and the defense has sometimes gone to the jury. For an overview of the necessity doctrine, see WAYNE R. LAFAVE, CRIMINAL LAW 523–34 (4th ed. 2003).

45 See Parry & White, supra note 9, at 761 n.85, and sources cited therein. This skewing, of course, threatens to be true of constitutional balancing tests in general. For a classic discussion of rights and balancing tests, see Mark Tushnet, An Essay on Rights, 62 TEX. L. REV. 1363, 1371–73 (1984).

46 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/64, Annex, art. 2, U.N. GAOR 39th Sess., 93d plen. mtg., U.N. Doc. A/Res/39/64 (Dec. 10, 1984), available at http://www.un.org/Depts/dhl/res/resa39.htm; International Covenant on Civil and Political Rights arts. 4, 5, G.A. Res. 2200A (XXI), U.N. GAOR 21st Sess., 1496th plen. mtg., U.N. Doc. A/6316 (Dec. 16, 1966), available at http://www.un.org/documents/ga/res/21/ares21.htm.



time of exception, in a state of crisis; and the law governing such situations seems ambiguous and shifting. This kind of jurisprudence is always contingent and suspect. The idea of necessity as a law of exception also requires an idea of “normal” law—a law that applies in unexceptional times and that does not countenance torture. That is to say, the jurisprudence of the exception, particularly the jurisprudence of torture, always stands in contrast to a normal jurisprudence. Many commentators would go further. Jeremy Waldron, for example, suggests that this normal law, if it is to be a rule of law at all, must not only reject torture but must also be founded on the rejection of torture.47 Put another way, in the ban on torture and related practices, we find the beginning of a “real” or legitimate rule of law. What is more, this approach appears not only to forbid torture in general, but also to forbid the exception—or at least exceptions that involve violence. Thus, regardless of the fact that it emerges from time to time in specific cases, the jurisprudence of the exception is often, if not always, illegitimate; it is not related to or part of normal jurisprudence.48

This is almost certainly not a historical claim. If, as Brian Tamanaha contends, some kind of rule of law ideal is a consistent theme in “western” law and politics,49 then it has

47 See Waldron, supra note 7, at 1729. 48 A similar debate about normal and exceptional law runs through recent work on the

question of emergency powers. For useful discussions from a variety of perspectives, see CLINTON ROSSITER, CONSTITUTIONAL DICTATORSHIP: CRISIS GOVERNMENT IN THE MODERN DEMOCRACIES (Transaction Publishers 2002) (1948); JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11 (2005); Bruce Ackerman, The Emergency Constitution, 113 YALE L.J. 1029 (2004); David Dyzenhaus, Schmitt v. Dicey: Are States of Emergency Inside or Outside the Legal Order?, 27 CARDOZO L. REV. 2005 (2006); John Ferejohn & Pasquale Pasquino, The Law of the Exception: A Typology of Emergency Powers, 2 INT’L J. CONST. L. 210 (2004); Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 YALE L.J. 1011 (2003); Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 GA. L. REV. 699 (2006); Henry P. Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1 (1993); Michael Stokes Paulsen, The Constitution of Necessity, 79 NOTRE DAME L. REV. 1257 (2004); Kim Lane Scheppele, Law in a Time of Emergency: States of Exception and the Temptations of 9/11, 6 U. PA. J. CONST. L. 1001 (2004); Laurence H. Tribe & Patrick O. Gudridge, The Anti-Emergency Constitution, 113 YALE L.J. 1801 (2004); Jules Lobel, Emergency Power and the Decline of Liberalism, 98 YALE L.J. 1385, 1408–09 (1989).

49 See BRIAN Z. TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY 1–6 (2004). Tamanaha consciously limits his discussion to what he calls “the west” and for the most part



usually coexisted with coercive and abusive practices. More specifically, the rule of law has coexisted with the use of torture in interrogation and punishment. Nor were these ad hoc processes; they often were written into law or at least ingrained so deeply into state practice that they had the force of law.50 Waldron’s claim is more limited but also more powerful. For any rule of law that counts—and he seems to mean for any conception of the rule of law that can operate in a liberal and perhaps also progressive society committed to human flourishing—the ban on torture is archetypal.51 What he means is that the ban expresses “our determination to sever the link between law and brutality, between law and terror, and between law and the enterprise of breaking a person’s will.”52 This argument is plainly more than descriptive, it is a claim about how the law and the legal system should operate and an assertion of the goal to which it should aspire. In other words, Waldron’s claim is essentially ideological; he insists upon a fundamental principle, a bedrock upon which to build a legitimate legal system. One might even call his claim an article of faith.53

Now comes Dershowitz to propose the torture warrant. His proposal aims to be clear-eyed and pragmatic. Whatever the theoretical foundation for his proposal may be (more on that in a moment), one thing is clear. By seeking to give a legal and procedural structure to what many people believe is normally

does not consider rule of law ideals in “non-western” legal traditions. Id. 50 For accounts, see MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON

32–69 (Alan Sheridan trans., 1977); JOHN H. LANGBEIN, TORTURE AND THE LAW OF PROOF: EUROPE AND ENGLAND IN THE ANCIEN RÉGIME (1977); LISA SILVERMAN, TORTURED SUBJECTS: PAIN, TRUTH, AND THE BODY IN EARLY MODERN FRANCE (2001).

51 Waldron, supra note 7, at 1723. For Waldron’s assessment of the goals of liberal societies, see JEREMY WALDRON, Liberal Rights: Two Sides of the Coin, in LIBERAL RIGHTS: COLLECTED PAPERS 1981–1991, at 1, 13–14 (1993).

52 Waldron, supra note 7, at 1727. 53 This may also be where Waldron and Luban, both of whom address the intersections of

torture and liberalism, differ. Luban’s argument is consistent with Waldron’s to the extent he agrees that opposition to the cruelty and tyranny that torture represents is a basic liberal commitment. Yet he also recognizes that interrogational torture for intelligence gathering purposes is at least initially consistent with liberal rationality. He then proceeds to argue that the rational arguments for torture—most notably, the ticking time bomb hypothetical—are flawed. See Luban, supra note 9, at 1440–45. Waldron, by contrast, appears to reject the idea that any kind of torture or significant coercion could be consistent with liberalism.



a formless or ambiguous exception, Dershowitz destabilizes the conception of the rule of law as a substantive commitment to a set of legal principles that are so important that society must always adhere to them even if doing so puts it at risk.54 From Waldron’s point of view, Dershowitz may have committed something like liberal heresy, and to the extent others share that assessment, it goes a long way toward explaining—and perhaps even for some readers, justifying—the tone of the reactions to his proposal.

The tricky issue for Waldron and other opponents of the torture warrant is that the principles Dershowitz seems to embrace are not very different from, or are at least closely related to, those that they put forth in opposition to him. Waldron’s true opponents in this debate are probably Bagaric and Clarke, whose unadorned utilitarian approach to torture treats law simply as a tool to serve aggregate preferences.55 Dershowitz, by contrast, rests his proposal on a foundation that has at least as much claim to the liberal rule of law tradition as Waldron’s. Where Waldron stresses a need for some level of substantive commitment—to the archetypes, at least—Dershowitz emphasizes transparency and accountability, not a substantive ideology,56 although it may also be that he believes that legitimacy must make room for the “basic” idea that society must be defended. Indeed, I read Dershowitz as seeking to take a position similar to the Supreme Court of Israel, which declared that a democracy

54 See supra notes 22–24 and accompanying text. 55 See BAGARIC & CLARKE, supra note 20, at 28–40. Perhaps, too, Eric Posner and Adrian

Vermeule are better targets for Waldron, although I think their proposal differs from that of Bagaric and Clarke in its effort to accord with rule of law ideas. See Posner & Vermeule, supra note 10, at 685–86, 688–90. For the argument that thinking of law in the way that Bagaric and Clarke do risks undermining the rule of law, see BRIAN Z. TAMANAHA, LAW AS A MEANS TO AN END: THREAT TO THE RULE OF LAW 215–25 (2006).

56 Although Tamanaha does not use the terms “transparency” or “accountability” in any systematic way, they are implicit in his description of the major themes of rule of law theories. See TAMANAHA, supra note 49, at 5. These values are also implicit in Richard Fallon’s taxonomy of rule of law ideals in constitutional law. See Richard H. Fallon, Jr., “The Rule of Law” as a Concept in Constitutional Discourse, 97 COLUM. L. REV. 1, 11–24 (1997). My argument can be read to suggest that liberalism is not or need not be ideological. I do not mean, however, to endorse this claim; I seek merely to describe what I think is the substance of Dershowitz’s position. I would argue that liberalism is as much an ideology as any other theory that seeks to organize political life, but I do not seek to defend that claim here.



must “fight with one hand tied behind its back” and cannot unleash the full power of the state, even as the court also provided some legal space for the use of torture.57 The difference between Dershowitz and the court is overwhelmingly one of doctrine and policy, not philosophy. Although the court chose the ex post approach of allowing the necessity defense in individual cases, while Dershowitz advocates an ex ante approach by means of warrants, the reasons for their choices are similar.58

The critical issue for my purposes is not the doctrinal difference between Dershowitz and the Supreme Court of Israel, but rather the larger question of torture’s relation to law and to the rule of law, and whether there is any meaningful difference between Dershowitz and his critics. If torture is permitted under exceptional circumstances, how do we categorize the exception? Is it inside the legal order as part of the rule of law, or is it a destabilizing outsider? Put differently, is there a legally cognizable exception that allows the approval of torture, or does normal law, founded on the archetypal torture ban, fill the entire legal space, so that torture can only be approved in a non-legal or extralegal way?

57 See HCJ 5100/94 Pub. Comm. Against Torture in Isr. v. Israel [1999] IsrSC 53(4) 817, ¶ 39, available at http://hei.unige.ch/~clapham/hrdoc/docs/terrorisraeljudgment.pdf. Note that the author of the Public Committee decision, former Chief Justice Aharon Barak, has not endured nearly as much criticism for his endorsement of the necessity defense in his opinion for the court. (Instead, U.S. legal academics lionize him for his considerable achievements in other areas.) Yet, Barak’s endorsement of the necessity defense in ticking bomb cases has played out in strange and brutal ways. According to a recent report, interrogators in Israel’s General Security Service now inform suspects who are considered particularly important that they are “ticking bombs.” See Yuval Ginbar, PUB. COMM. AGAINST TORTURE IN ISR., BACK TO A ROUTINE OF TORTURE: TORTURE AND ILL-TREATMENT OF PALESTINIAN DETAINEES DURING ARREST DETENTION AND INTERROGATION, SEPTEMBER 2001–APRIL 2003, at 44–45, 48 (Jessica Bonn trans., 2003), available at http://www.stoptorture.org.il//eng/images/uploaded/publications/58.pdf. Having defined the suspect as a kind of living emergency, officials are then free to employ coercive methods under their interpretation of Public Committee. See id. at 44–45. By July 2002, more than 90 people had been defined as ticking bombs and tortured. Id. at 9–10.

58 The Public Committee court stressed several times that its various holdings—that “physical methods” are not permitted under Israeli law, that the necessity defense may justify their use in some circumstances, that the legislature could authorize more routine use of physical methods, and that a democracy cannot use any and all available methods of investigation—were required by the rule of law. See HCJ 5100/94 Pub. Comm. Against Torture in Isr. v. Israel [1999] IsrSC 53(4) 817, ¶¶ 18, 37–39, available at http://hei.unige.ch/~clapham/hrdoc/docs/terrorisraeljudgment.pdf.



Here I think some of the opening passages of Giorgio Agamben’s State of Exception will clarify what is at stake. Agamben notes that, to many theorists, “the state of necessity, on which the exception is founded, cannot have a juridical form.”59 He continues:

[I]f exceptional measures are the result of periods of political crisis and, as such, must be understood on political and not juridico-constitutional grounds, then they find themselves in the paradoxical position of being juridical measures that cannot be understood in legal terms, and the state of exception appears as the legal form of what cannot have legal form. On the other hand, if the law employs the exception—that is the suspension of law itself—as its original means of referring to and encompassing life, then a theory of the state of exception is the preliminary condition for any definition of the relation that binds and, at the same time, abandons the living being to law.60

Just what Agamben means by the phrase “abandons the

living being to law” becomes clear a few pages later. Although the language seems abstract at first, Agamben has something very concrete in mind. He describes the prisoners at Guantánamo Bay as “legally unnamable and unclassifiable being[s]” who exist in a condition of “maximum indeterminacy.”61 He also contends that the state of

59 GIORGIO AGAMBEN, STATE OF EXCEPTION 1 (Kevin Attell trans., 2005). 60 Id. (citation omitted). For good analyses of how Agamben’s ideas of the exception map

onto the detention and torture debates, see Leonard C. Feldman, Terminal Exceptions: Law and Sovereignty at the Airport Threshold, 3 LAW CULTURE & HUMAN. 320 (2007); Charles R. Venator Santiago, From the Insular Cases to Camp X-Ray: Agamben’s State of Exception and United States Territorial Law, in 39 STUDIES IN LAW, POLITICS, AND SOCIETY 15 (Austin Sarat ed., 2006). Perhaps interesting in this context is that Slavoj Žižek cited Agamben in a New York Times column that was critical of Dershowitz’s approach to torture, and to which Dershowitz responded with a letter. See Žižek, supra note 6, at A13; Dershowitz, supra note 6, at A13.

61 Id. at 1, 3–4. For a somewhat similar analysis, see JUDITH BUTLER, PRECARIOUS LIFE: THE POWERS OF MOURNING AND VIOLENCE 50–100 (2004). By contrast, Fleur Johns argues Guantanamo is not an exceptional space because it exists within a legal framework such that administration officials couched their decisions as “more a matter of implementation than decision.” Fleur Johns, Guantánamo Bay and the Annihilation of the Exception, 16 EUR. J. INT’L L. 613, 631 (2005). This conclusion is problematic, especially to the extent it suggests a state of exception must be normless. Carl Schmitt observes, for example, that although "the exception is different from anarchy and chaos, order in the juristic sense still prevails even if it is not of the ordinary kind." CARL SCHMITT, POLITICAL THEOLOGY: FOUR CHAPTERS ON THE



exception—that is, the condition in which the prisoners of the war on terror find themselves—is increasingly the norm or paradigm of modern government.62 What this seemingly dire claim means is not so much that we are all at risk of being imprisoned and tortured at Guantánamo, but rather that our “normal” legal system already operates under the same assumptions that guide the creation and operation of Guantánamo and other supposedly exceptional spaces. Important aspects of the law of constitutional criminal procedure bear out that claim, and one might even contend that administrative law in general, with its focus on executive branch reasonableness and the fluidity of statutory constraints, also supports Agamben’s position.63

A survey of commentators who admit the possibility of using torture reveals that their discussions map along the lines Agamben lays out. For one group, perhaps best characterized by Oren Gross, Michael Walzer, and Slavoj Žižek, the use of torture is an act that always takes place outside the legal system, and which may be understandable or even appropriate in rare cases but with which the legal system can have nothing to do, no matter how great the exigency.64 Those

CONCEPT OF SOVEREIGNTY 12 (George Schwab trans., 1985). Similarly, Agamben claims contemporary democracies "prefer[] to have exceptional laws issued" rather than declare a state of exception. AGAMBEN, supra note 59, at 21; see also Ferejohn & Pasquino, supra note 48, at 216 (describing "the legislative model" of emergency powers). The camp at Guantanamo may be justified by reasons and filled with rules—rules in fact implemented by administrators—but those reasons are not mere applications of legal norms, and the rules derive directly from Guantanamo’s exceptional status. Indeed, it is precisely the relationship among rule, decision, and extra-legal norm that defines Guantanamo as an exceptional space.

62 AGAMBEN, supra note 59, at 2. 63 See Parry, Terrorism, supra note 8, at 797–822; see also HANNAH ARENDT, THE ORIGINS

OF TOTALITARIANISM 462–63 (new ed. 1973) (articulating a distinction between positive law and totalitarian law); MICHEL FOUCAULT, SECURITY, TERRITORY, POPULATION: LECTURES AT THE COLLÈGE DE FRANCE, 1977–78, at 339–41 (Michel Senellart ed., Graham Burchell trans., 2007) (discussing differences between juridical forms of law and the regulatory apparatus associated with police power). Markus Dubber’s discussion of the difference between law and police power plays on the same tension that Arendt and Foucault articulated. Markus D. Dubber, Legitimating Penal Law, 28 CARDOZO L. REV. 2597, 2599–2600 (2007).

64 See ŽIŽEK, supra note 22, at 103–04; Walzer, supra note 22, at 64–65; Gross, supra note 7, at 1489, 1495; Žižek, supra note 6, at A13. I do not mean to suggest that these three writers exhibit exactly the same attitude toward acts of torture. For example, Žižek refuses to discuss torture in terms of justification. Instead, he insists, “it is absolutely crucial that we do not elevate this desperate choice into a universal principle; following the unavoidable brutal urgency of the moment, we should simply do it [while also] retain[ing] the sense of guilt, the



who advocate the use of the necessity defense in legal proceedings seem closer to the second position, although opting for the necessity defense puts one on the edge of formal law.65 Yet perhaps this is part of what Agamben means by the idea that the state of exception might form the “preliminary condition” for the relationship between law and life. Dershowitz, by contrast, brings the exception wholly into the law, creates a structure for it, and links the violence of torture—and law’s control of it through rules—to the foundations of the legal system, which he identifies as accountability, transparency, and democracy.66 Parenthetically, I should stress that I am not arguing that the exception must necessarily be outside the law or that if it is, it must either be contained within or excluded by legal structures. My reading of Agamben, and my own sense of the debate, is that the exception is always both inside and outside the law—as Agamben emphasizes, it is the threshold—with the result that it is always contested and always fought over. Worth noting, too, is that although the state of exception poses risks, those risks are linked to its status as a zone of opportunity and creativity. 67

awareness of the inadmissibility of what we have done.” ŽIŽEK, supra note 22, at 103. To that end, Žižek sharply criticizes debates about the possible legality or permissibility of torture. By contrast, Gross stresses the same values of transparency that also animate the torture warrant proposal. One might also see Justice Jackson’s dissent in Korematsu v. United States as reflecting views that are roughly similar to this general approach—and in the closely related context of detention. 323 U.S. 214, 244, 247 (1944) (Jackson, J., dissenting) (refusing to endorse detention of Japanese Americans during World War II but also suggesting that there could be no meaningful legal review of a wartime detention order). An example from outside the torture debate is Queen v. Dudley & Stephens, (1884) 14 Q.B.D. 273, 288, in which Lord Coleridge declared that necessity could never justify homicide—in this case, homicide followed by cannibalism to survive in an open boat. Under this reasoning, the legal system can only condemn a homicide even if committed in justifying circumstances. Although this at first seems to indicate a simple stance against exceptions, the full story of the case is revealing: the sailors were pardoned. Id. at 288 n.17. Application of the exception, in other words, was not prohibited. Instead, it was understood as a political act even as it took a legal form. See id. For application of Agamben’s ideas about the state of exception to clemency, see Austin Sarat & Nasser Hussain, On Lawful Lawlessness: George Ryan, Executive Clemency, and the Rhetoric of Sparing Life, 56 STAN. L. REV. 1307, 1314 (2004).

65 See, e.g., Parry & White, supra note 9, at 760–61. 66 Dershowitz, Tortured Reasoning, supra note 5, at 266. Eric Posner and Adrian

Vermeule also propose bringing the exception entirely inside the law through a combination of warrants and other legal rules. See Posner & Vermeule, supra note 10, at 699.

67 See infra note 73.



To simplify, on one side of the U.S. legal debate over torture we have discretion and formlessness, in which, to use Carl Schmitt’s phrase, “the state remains, whereas law recedes.”68 On the other side we have rules and structure (although not as much as a thoroughgoing legalization of torture would produce). One might think that the latter pairing of structure and rules would better correspond with core ideas of the rule of law. Mark Tushnet, for example, has suggested that the proliferation of exceptions in the name of national security threatens the rule of law.69 Yet Dershowitz’s critics take a somewhat different view, in which the rule of law rests not so much on clear rules as on proper rules. Part of this difference reflects the old debate between formal, positivist conceptions of the rule of law and substantive or moral versions of it,70 but I think it also reflects something more.

The move of bringing torture within the legal system is a threat to the foundation that Waldron and others claim for the rule of law. If the rule of law rests on the archetypal ban on torture, and that ban collapses, then one of two things happens: either the rule of law itself dissolves, or—perhaps even worse—the rule of law continues, but on a foundation that allows torture and other forms of state violence. Indeed, one might even say that under the second scenario the rule of law would become founded on violence (rather than merely employing force in a constrained way as a necessary tool of law enforcement).71 Such a result would be nonsensical and perhaps even paradoxical to many commentators.

Another way of making this point is that both Dershowitz and Waldron recognize that the debate over torture warrants, and the existence and possible scope of a torture jurisprudence

68 SCHMITT, supra note 6, at 12. 69 Mark Tushnet, Emergencies and the Idea of Constitutionalism, in THE CONSTITUTION IN

WARTIME: BEYOND ALARMISM AND COMPLACENCY 39, 45 (Mark Tushnet ed., 2005). I would prefer to say that the proliferation of exceptions might threaten the way the rule of law is produced and maintained.

70 See Waldron, supra note 7, at 1721–23 (situating his idea of archetypes within this debate). For another useful discussion by Waldron of the complexities of rule of law claims, see Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (in Florida)?, 21 LAW & PHILOS. 137 (2002).

71 See id. at 1726–27.



that warrants would require, is also a discussion about the relationship among law, government, and violence, including the ability of the state to use violence and the constraints placed upon that ability. Instead of attempting to resolve that debate—something that I doubt can be done—I will close with a story.

In Thomas Mann’s novel The Magic Mountain, the protagonist, Hans Castorp, is a young man of few firm convictions. Ensconced in a tuberculosis sanatorium, he becomes caught in a debate over civilization, violence, law, and values between two characters who in rough ways represent, respectively, ideals of progress arrayed against nihilism. Three-fourths of the way through the novel, in a chapter titled “Snow,” Hans tries to leave the debate behind by going skiing. He gets lost in a blizzard, stops at a ruined shelter, and falls into a stupor in which he has a vision of an ordered, egalitarian, happy, and peaceful country whose people demonstrate love, nobility of spirit, mutual concern and deference. But the landscape is dominated by a complex of columned buildings and porticos—perhaps a temple, or a seat of secular authority, or both. Hans stumbles into the center of the complex, and his vision of peace and love changes to one of horror. Two half-naked old women—crones or priestesses—are tearing a baby into pieces and eating it. Hans recoils and wakes from his dream. He vows to remember the lesson that this vision has taught him, but by the time he returns to his lodgings, he has forgotten it.72

We can read this story in many ways, but at least one way is

72 THOMAS MANN, THE MAGIC MOUNTAIN 480–89 (John E. Woods trans., 1995) (1924). Upon awakening from the dream, Hans concludes that the lesson is, “For the sake of goodness and love, man shall grant death no dominion over his thoughts.” Id. at 487 (emphasis omitted). Not only does he forget that lesson, but the novel ends with Hans running across a World War I battlefield at dusk with 3,000 fellow soldiers. After observing, “Your chances are not good,” id. at 706, Mann ends the novel with a comment in which hope and irony are inextricably entwined:

There were moments when . . . you saw the intimation of a dream of love rising up out of death and this carnal body. And out of this worldwide festival of death, this ugly rutting fever that inflames the rainy evening sky all around—will love someday rise up out of this, too?

Id.



as an illustration of the fact that behind all the lovely structures, after all the talk about the rule of law, rights, and democracy, violence is the simple fact at the heart of every legal and political order.73 When we walk into the temple and draw the curtain aside, we come face to face with an elemental horror, something that we think ought to be alien to our ordered lives, but which nonetheless stands at the very heart of our social arrangements. Reading Mann and Agamben together, one of the questions we should ask is whether the archetypes—the founding commitments of our legal order—are already and always commitments of violence, possibly sacred but certainly horrific. If so, then we do not have the luxury of creating the rule of law out of a choice between violence and no violence, or between brutal violence and violence as a controlled and limited tool.74

The possibility that no one can escape grounding the rule of law in violence suggests why most of us prefer the stance of Hans Castorp, in which forgetfulness conquers insight. The debate over torture warrants brings the idea of foundational violence back to the surface, and most of us simply do not like being confronted with that fact. Indeed, the goal of some participants in the torture warrant debate seems primarily to

73 See John T. Parry, Pain, Interrogation, and the Body: State Violence and the Law of Torture, in EVIL, LAW AND THE STATE: PERSPECTIVES ON STATE POWER AND VIOLENCE 1, 1–2, 4, 12 (John T. Parry ed., 2006). To some extent, this interpretation has an affinity with Benjamin’s Critique of Violence, written at approximately the same time as The Magic Mountain, and which argues in part that violence or potential violence is necessary to making and preserving law. See WALTER BENJAMIN, Critique of Violence, in REFLECTIONS: ESSAYS, APHORISMS, AUTOBIOGRAPHICAL WRITINGS 277, 277, 288 (Peter Demetz ed., Edmund Jephcott trans., 1978). Worth noting as well is that Agamben devotes a significant part of State of Exception to a discussion of Benjamin. AGAMBEN, supra note 59, at 6, 54–55. There is also a sense in Benjamin’s Critique, and to an extent in Agamben’s work, that the state of exception is not merely a tool of state violence but also a place of opportunity and creativity, even a potential site of resistance to the “killing machine,” id. at 86, of modern politics.

74 For what it is worth, my own views about the rule of law do not turn on a necessary rejection of certain forms of violence. Nor do I think of rule of law values as something that can be handed down by a sovereign or philosopher. My sense of the rule of law is more social or cultural, as well as temporal: “[W]e should see the rule of law as the product of our ability to keep a satisfactory legal and political system in operation over time.” John T. Parry, The Virtue of Necessity: Reshaping Culpability and the Rule of Law, 36 HOUS. L. REV. 397, 456 (1999). “Satisfactory,” of course, is something of a weasel word, but I am trying to suggest an approach to the rule of law that accommodates the argument that certain kinds of violence must be rejected but that does not automatically give that claim—or any other—foundational status.



be one of pushing violence back out of sight, covering it back over, and denying any relationship between the violent exception and the legal system.75 Dershowitz, by contrast, seeks to admit the violence but to control it with law, such that the exception is written into the shape of the law.

Agamben also is concerned with the relationship between violence and law,76 but he claims that the approaches I have sketched cannot succeed, because the distinctions that they presuppose, between such things as norm and application, rights and violence, rules and discretion, are themselves the problem—the legal order that they describe is always fragile, always at risk of dissolving “into a killing machine.”77 Perhaps his diagnosis is correct, but what do we do with it? Agamben’s solution is a radical return to politics in an effort to sever completely “the nexus between violence and law,”78 yet he offers little explanation of what that means once we take those words off the page and try to apply or experience them in the world.79 Indeed, the risk is that, as with any proposal

75 Benjamin warned against political actors and theorists who forget the tight connection between law and violence. See BENJAMIN, supra note 73, at 288. More recently, Robert Cover and Paul Kahn have done the same. See PAUL W. KAHN, THE CULTURAL STUDY OF LAW: RECONSTRUCTING LEGAL SCHOLARSHIP 93–94 (1999); Robert Cover, Violence and the Word, 95 YALE L.J. 1601 (1986), reprinted in NARRATIVE, VIOLENCE, AND THE LAW: THE ESSAYS OF ROBERT COVER 203, 236 (Martha Minow et al. eds., 1992). For his part, Waldron suggests that theorists who insist on a necessary connection between law and violence are “dogmatic[].” See Waldron, supra note 7, at 1727 n.207 (citing Austin Sarat & Thomas R. Kearns, A Journey Through Forgetting: Toward a Jurisprudence of Violence, in THE FATE OF LAW 209, 209–12 (Austin Sarat & Thomas R. Kearns eds., 1991), who in turn were quoting Cover’s Violence and the Word, supra). Where readers come down on the question of who among all these writers is dogmatic might depend less upon the merits of one or another set of arguments and more upon readers’ own stances toward liberalism and the rule of law.

76 AGAMBEN, supra note 59, at 59. 77 Id. at 86. 78 Id. at 88; see also id. at 64; GIORGIO AGAMBEN, HOMO SACER: SOVEREIGN POWER AND

BARE LIFE 59 (Daniel Heller-Roazen trans., 1998). 79 Several of Agamben’s writings suggest that what he wants is not law, or rather law

without force, because his goal is an ethics or a community, not a state or law. In addition to State of Exception, AGAMBEN, supra note 59, at 64, and Homo Sacer, AGAMBEN, supra note 78, at 59, see GIORGIO AGAMBEN, THE COMING COMMUNITY 43 (Michael Hardt trans., 1993); GIORGIO AGAMBEN, THE OPEN: MAN AND ANIMAL 6–8 (Kevin Attell trans., 2004). For useful discussions, see ROSI BRAIDOTTI, TRANSPOSITIONS 210, 265, 270 (2006) (criticizing Agamben for his Heideggarian obsession with death and his failure to recognize that the condition he identifies as bare life “has historically been feminized”); Colin McQuillan, The Political Life in Giorgio Agamben, 2 KRITIKOS (July 2005), http://garnet.acns.fsu.edu/%7Enr03/mcquillan.htm (stressing Agamben’s ethical goals and the idea of bare life as potentiality); and Paul A. Passavant, The Contradictory State of Giorgio Agamben, 35 POL. THEORY 147 (2007)



for a “new” politics, we will only produce more violence, followed by a new order—including a new legal order—that at best will be little different from what was overthrown. But if that is true—if Agamben fails in his prescription but not in his diagnosis—then our only option may be to live within and seek to manage as best we can the dangerous tension that the torture debate represents. Whether or not one agrees with his solution, Alan Dershowitz deserves credit, not censure, for pulling us out of our fantasies about the rule of law and forcing us to face the tensions and even terrors inherent in it. What we do with that knowledge is up to us.

(criticizing Agamben’s ideas of the state and law).

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