Dershowitz's article is less about the merits of the torture warrant idea and more about claiming an unusual and expected ally in his cause: President Bill Clinton. According to Dershowitz, in a recent interview on National Public Radio (September 20, 2006), Clinton was asked, as someone "who's been there," whether the president needs "the option of authorizing torture in an extreme case." Clinton's response:
Look, if the president needed an option, there's all sorts of things they can do. Let's take the best case, OK. You picked up someone you know is the No. 2 aide to Osama bin Laden. And you know they have an operation planned for the United States or some European capital in the next … three days. And you know this guy knows it. Right, that's the clearest example. And you think you can only get it out of this guy by shooting him full of some drugs or water-boarding him or otherwise working him over. If they really believed that that scenario is likely to occur, let them come forward with an alternate proposal.
"We have a system of laws here where nobody should be above the law, and you don't need blanket advance approval for blanket torture. They can draw a statute much more narrowly, which would permit the president to make a finding in a case like I just outlined, and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court."
Clinton was then asked whether he was saying there "would be more responsibility afterward for what was done." He replied: "Yeah, well, the president could take personal responsibility for it. But you do it on a case-by-case basis, and there'd be some review of it." Clinton quickly added that he doesn't know whether this ticking bomb scenario "is likely or not," but he did know that "we have erred in who was a real suspect or not."
If they really believe the time comes when the only way they can get a reliable piece of information is to beat it out of someone or put a drug in their body to talk it out of 'em, then they can present it to the Foreign Intelligence Court, or some other court, just under the same circumstances we do with wiretaps. Post facto….
But I think if you go around passing laws that legitimize a violation of the Geneva Convention and institutionalize what happened at Abu Ghraib or Guantanamo, we're gonna be in real trouble."
Clinton's argument is that while the US certainly doesn't want to pass laws that normalize torture, or institute it as a regular policy option, as someone who has been the position of making very difficult decisions about how to best protect the country he seems to recognize that, in very rare cases, torture may be necessary.
The idea of a torture warrant is interesting for many reasons. One big reason to oppose it, however, is that there is little evidence that courts have the backbone to oppose federal requests for actions in the name of national security. Yes, FISA may keep warrants from being used in criminal proceedings or for political purposes, but there don't seem to be many instances of the government being turned down (this may be a problem of selection bias; that is, because the feds know they have to go before a judge and ask permission, they don't bother asking about the questionable cases). Would a judge deny the CIA or FBI the right to torture a terrorist after being told the suspect may have information that could save American lives? I'm normally suspicious of slippery slope arguments, but I'm even more suspicious of government power.
However, this is a discussion that needs to be taken seriously. My colleague, David Sousa, gave a talk for "Constitution Day" (American universities that receive federal money are required to do some kind of educational programming about Constitution Day) about civil liberties in the US after 9/11, in which he warned that if you think civil liberties are under siege now, just wait until after the next attack. That is a scary prospect. That's not to say that our country needs to take any and all steps to prevent another attack at all costs. But we also can't hide behind our squeamish and liberal natures. Developing some sort of legal and political barrier to prevent torture from becoming routine, but maintaining it as an option in an extreme scenario is something that needs to be discussed.