dershowitz - 18178_nlr_48-1-2 Sheet No. 141 Side A...

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THE TORTURE WARRANT: A RESPONSE TO PROFESSOR STRAUSS A LAN M. D ERSHOWITZ * Professor Strauss characterizes me as “figuring most promi- nently in [the] debate” over whether torture “would be justified to prevent mass casualties . . . [the] ‘ticking bomb scenario.’” 1 She says that I have “ seemingly advocated the use of torture in certain very limited circumstances.” 2 In light of how much I have written about this issue, Strauss’s use of the word “seemingly” is surprising. 3 But at least she does not claim, as others have, that I advocate “cir- cumventing constitutional prohibitions on torture,” 4 that I have given “thumbs up to torture,” that I have “proposed torture for cap- tured terrorist leaders,” 5 that I believe “U.S. agencies should be ac- corded the right to torture those suspected of withholding information in a terrorist case,” 6 and that I “advocate . . . shoving a sterilized needle under the fingernails of those subjects being inter- rogated.” One reviewer has even called me “Torquemada Dersho- witz,” a reference to the notorious torturer of the Inquisition. 7 No one, however, reminded readers that it was the liberal Jeremy Ben- tham who made the most powerful utilitarian case for limited tor- ture of convicted criminals to gather information necessary to * Alan M. Dershowitz is the Felix Frankfurter Professor of Law at Harvard Law School. L.L.B. Yale Law School, 1986; A.B. Brooklyn College, 1959. 1. Marcy Strauss, Torture , 48 N.Y. L AW SCH. L. REV. 203, 207 (2004). 2. Id. at 207 (emphasis added). 3. See infra note 15. 4. Brendon O’Leary, In Defence of the Indefensible , T IMES HIGHER EDUCATION SUP- PLEMENT, Oct. 4, 2002, at 23. 5. Jed Babbin, The Silence of the Lambs: Torture is Not Appropriate Treatment for Ter- rorists ,W ASH. TIMES, Mar. 21, 2002, at A19. 6. Paul William Roberts, September 11: Islamists and Their Enemies, G September 7, 2002 at, D2 (book review). 7. Babbin, supra note 5, at A19. (“Torquemada Dershowitz then defines the lib- eral view of ‘permissible’ torture, saying that it would be limited to ‘nonlethal means, such as sterile needles, being inserted beneath the nails to cause excruciating pain with- out endangering life.’”). 275
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276 NEW YORK LAW SCHOOL LAW REVIEW [Vol. 48 prevent serious future crime. 8 Perhaps the most surprising mis- characterization of my actual position on torture comes from Judge Richard Posner of the United States Court of Appeals for the Sev- enth Circuit. He alleged that I “recommend . . . that suspected terrorists be tortured for information by having needles stuck under their fingernails . . .” 9 a suggestion that he characterizes as “tinged with sadism.” 10 He also said, in his generally positive review of my book, Why Terrorism Works , that there “is no discussion” of alternatives such as “truth serums” in the book. 11
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This note was uploaded on 02/28/2011 for the course REL 261 taught by Professor Erics.gregory during the Fall '09 term at Princeton.

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dershowitz - 18178_nlr_48-1-2 Sheet No. 141 Side A...

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