"Torture Warrants," again

Alan Dershowitz has this op-ed in the Los Angeles Times, in which he remembers that he had "provoked a storm of controversy [several years ago] by advocating 'torture warrants' as a way of creating accountability for the use of torture in terrorism cases.  [He] argued that if we were ever to encounter a 'ticking bomb' situation in which the authorities believed that an impending terror attack could be prevented only by torturing a captured terrorist into revealing the location of the bomb, the authorities would, in fact, employ such a tactic."

He is probably right that the authorities "would, in fact, employ such a tactic."  However, I disagreed then, and disagree now, that this predictive judgment calls for legal mechanisms that would authorize, before the fact, their doing so.  It seems important to me that the law set its face against torture, even in such extreme cases.

Dershowitz wonders, though, if a similar storm of controversy will follow this recent statement by President Clinton:

"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."

Clinton summarized his views in the following terms: "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….