Dershowitz, Alan M.

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REPLYTORTURE WITHOUT VISIBILITY ANDACCOUNTABILITY IS WORSE THAN WITH ITAlan M. DershowitzOliver Wendell Holmes Jr. once defined the law as " [t] he prophe-cies of what the courts will do in fact."' It is this empirical view of lawthat suggests to me that the courts will probably allow some degree ofnon-lethal torture when deemed necessary to elicit information ca-pable of preventing an act of terrorism likely to result in mass casual-ties. My own normative preference would be for the courts to declareall forms of torture unconstitutional, even if its fruits are not usedagainst the defendant and even if it is not administered as "punish-ment." My own normative preference would also be for law enforce-ment officials to refrain from using torture, but my empirical conclu-sion is that they will, in fact, employ it in "ticking bomb" cases.2 Myprediction of what the current courts "will do in fact" is differentfrom Professor Kreimer's.3 I hope he is right, but I think I am right.If he is right, he should support my proposal for some kind of le-gal structure that promotes visibility and accountability through a"torture warrant." In the absence of some such structure, it will bedifficult to get a test case before the courts, since torture will con-tinue to be administered beneath the radar screen and with the kindof "deniability" that currently shrouds the practice. The open au-thorization of limited torture warrants could, on the other hand, bechallenged on its face, and we would soon learn whose prediction ismore accurate. If he is right, all forms of torture would be declaredunconstitutional. If I am right, there would, at least, be some ac-countability, visibility, and limitations on a dangerous practice that iscurrently shrouded in secrecy and deniability. Accountability andvisibility are important elements in a democratic society, as I argue indetail in Why Terrorism Works.4Felix Frankfurter Professor of Law, Harvard Law School.0. W. Holmes, The Path of Law, 10 HARV. L. REV. 457, 461 (1897).2 ALAN M. DERSHOWITZ, WHY TERRORISM WORKS: UNDERSTANDING THE THREAT,RESPONDING TO THE CHALLENGE (2002).3 Seth F. Kreimer, Too Close to the Rack and the Screw: Constitutional Constraints on Torture in theWar on Terror, 6 U. PA.J. CONST. L. 278 (2003).4 DERSHOWITZ, supra note 2.

Reply: Torture Without Visibility and Accountability is Worse Than With It

https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1342&amp;context=jcl

Reply: Torture Without Visibility and Accountability is Worse Than With It

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