Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience

May torture ever be morally or legally permissible? In Why Terrorism Works, Professor Alan Dershowitz makes two important claims. First, he rejects the notion that a prohibition on torture ought to be absolute. Second, in an attempt to limit the use of torture and maximize civil liberties Dershowitz suggests the mechanism of judicial torture warrants as a prerequisite to torturing suspected terrorists in interrogations. This article challenges both of Dershowitz\u27s propositions by introducing two interlinked claims based on concepts of pragmatic absolutism and official disobedience. I argue that an absolute legal ban on torture ought to be maintained. However, in truly catastrophic cases the appropriate method of tackling extremely grave national threats may call for going outside the legal order. The way to deal with the extreme or catastrophic case is neither by ignoring it nor by using it as the center-piece for establishing general policies. Rather, the focus is on the possibility that truly exceptional cases may give rise to official disobedience: Public officials may act extralegally and be ready to accept the legal ramifications of their actions. Whereas Dershowitz argues that torture may be both morally and legally permissible under certain circumstances, I suggest that even if we recognize that torture may be morally defensible in exceptional cases, that fact should not affect an uncompromising legal ban on torture. The debate about the moral and legal nature of the prohibition on torture has followed the fault lines separating deontologists and consequentialists. The article introduces the two opposing perspectives and suggests that the picture is more complex than either camp would have us believe. It argues that the case for an absolute prohibition on torture can be made stronger and more compelling by wedding together non-consequential and pragmatic claims. The article goes on to suggest that catastrophic cases present open-minded absolutists with a dilemmatic choice and argues the case for official disobedience as a mechanism to address that tragic choice. Catastrophic cases may entail public officials going outside the legal order, at times violating otherwise accepted constitutional principles. It is then up to society as a whole to decide how to respond ex post to extralegal actions undertaken by these officials. The article explains the advantages of such ex post ratification and suggests that a method of ex post ratification is preferable to ex ante judicial approval of interrogational torture

The New Way of War: Is There A Duty to Use Drones?

Part I of this Article briefly describes the newest battlespace occupants. Robotic systems have been taking active part in combat. They now inhabit the air, the land, and the sea. They carry out missions ranging from surveillance and bomb disposal to “destroy and disable.” Part II examines the relevant principles of LOAC. It argues that drones are not, per se, unlawful under LOAC. Rather, the critical question is the same for drones as for other types of weapons, i.e., whether the specific use of the weapon complies with LOAC. In this context, the weapon must be deployed in accordance with LOAC’s fundamental principles of humanity, proportionality, distinction, taking precautions, and military necessity. Even if a specific type of weapon is not unlawful per se (or has not been specifically prohibited by particular treaties), it may not be used improperly, e.g., in a manner that would run afoul of these principles. Part III applies the principles of LOAC to drones. First, it analyzes the general trajectories of the development of new weapons throughout human history, which has involved trading off between three main considerations, namely distance, accuracy, and lethality. Second, it examines the rise of precision-guided munitions as an attempt to balance these three considerations, increasing military efficiency while minimizing harm to civilians and civilian objects. Part IV discusses the ability of drones to combine both remote exercise of force and high accuracy to reduce lethality. Part IV also closely examines both the promised benefits that the use of drones may bring to battlespace and the challenges to their deployment. Part V returns to the question of whether states and their military commanders have an obligation to use drones in the context of an armed conflict. It argues that although there are no treaties that deal specifically with the use of drones in armed conflict and no customary norms obligating the use of drones, such a duty may be derived from the cardinal principles of the law of armed conflict. It suggests that such an interpretation is merited if we accept that drones offer the possibility of a more humane war by combining remote and accurate use of force to reduce lethality among both friendly forces and innocent civilians. Part V concludes by setting out further challenges that ought to receive careful attention in developing and elaborating on the obligation to use drones in the battlefield

Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience

May torture ever be morally or legally permissible? In Why Terrorism Works, Professor Alan Dershowitz makes two important claims. First, he rejects the notion that a prohibition on torture ought to be absolute. Second, in an attempt to limit the use of torture and maximize civil liberties Dershowitz suggests the mechanism of judicial torture warrants as a prerequisite to torturing suspected terrorists in interrogations. This article challenges both of Dershowitz\u27s propositions by introducing two interlinked claims based on concepts of pragmatic absolutism and official disobedience. I argue that an absolute legal ban on torture ought to be maintained. However, in truly catastrophic cases the appropriate method of tackling extremely grave national threats may call for going outside the legal order. The way to deal with the extreme or catastrophic case is neither by ignoring it nor by using it as the center-piece for establishing general policies. Rather, the focus is on the possibility that truly exceptional cases may give rise to official disobedience: Public officials may act extralegally and be ready to accept the legal ramifications of their actions. Whereas Dershowitz argues that torture may be both morally and legally permissible under certain circumstances, I suggest that even if we recognize that torture may be morally defensible in exceptional cases, that fact should not affect an uncompromising legal ban on torture. The debate about the moral and legal nature of the prohibition on torture has followed the fault lines separating deontologists and consequentialists. The article introduces the two opposing perspectives and suggests that the picture is more complex than either camp would have us believe. It argues that the case for an absolute prohibition on torture can be made stronger and more compelling by wedding together non-consequential and pragmatic claims. The article goes on to suggest that catastrophic cases present open-minded absolutists with a dilemmatic choice and argues the case for official disobedience as a mechanism to address that tragic choice. Catastrophic cases may entail public officials going outside the legal order, at times violating otherwise accepted constitutional principles. It is then up to society as a whole to decide how to respond ex post to extralegal actions undertaken by these officials. The article explains the advantages of such ex post ratification and suggests that a method of ex post ratification is preferable to ex ante judicial approval of interrogational torture