Torture Warrants, Necessity, and Self-Defense

This article explores a debate over the legal mechanisms by which interrogational torture could be sanctioned. Four separate proposals are considered, including: civil disobedience; torture warrants; self-defense; and necessity. Civil disobedience does not allow for legalized torture, but may allow for reduced punishments. Torture warrants contrast with self-defense and necessity in terms of offering ex ante, as opposed to ex post, authorization; arguments for and against either approach are considered. While there has been some legal scholarship in relation to torture warrants, less has been said about ex post justifications. This article ultimately defends the appropriateness of the necessity defense for torture, making both the moral and legal case for such a defense. Ticking time-bomb cases famously—or infamously—invite us to imagine a scenario wherein the torture of one guilty terrorist will lead to the acquisition of information that can be used to save the lives of many innocents. Despite the contemporary focus on such cases, they own a long tradition, dating to the early 1800s. And, throughout their history, they have appeared in various guises, from the literary to the public to the philosophical. The principal moral question suggested by these cases is whether one harm can be effected such that a worse one is not; while there is certainly dissent, most moral philosophers would answer this question in the affirmative. That said, there is substantial doubt as to whether torture would be the lesser harm or, more generally, whether ticking time-bomb cases gain any † Associate Professor, Philosophy Department, Western Michigan University, and Senior Research Fellow, Centre for Applied Philosophy and Public Ethics, The Australian National University. Please direct correspondence to [email protected]. 1 For example, consider Jeremy Bentham: Suppose an occasion, to arise, in which a suspicion is entertained, as strong as that which would be received as a sufficient ground for arrest and commitment as for felony—a suspicion that at this very time a considerable number of individuals are actually suffering, by illegal violence inflictions equal in intensity to those which if inflicted by the hand of justice, would universally be spoken of under the name of torture. For the purpose of rescuing from torture these hundred innocents, should any scruple be made of applying equal or superior torture, to extract the requisite information from the mouth of one criminal, who having it in his power to make known the place where at this time the enormity was practicing or about to be practiced, should refuse to do so? To say nothing of wisdom, could any pretense be made so much as to the praise of blind and vulgar humanity, by the man who to save one criminal, should determine to abandon [one hundred] innocent persons to the same fate? Bentham MSS Box 74.b, 429 (May 27, 1804), quoted in W.L. Twining and P.E. Twining, Bentham on Torture, 24 Northern Ireland Legal Quarterly 307, 347 (1973). 2 See Jean Lartéguy, Les Centurions (Avon Books 1961) (Xan Fielding, trans) (originally published 1960). See also Anthony Quinton, Views, The Listener 757-758 (December 2, 1971). See also Henry Shue, Torture, 7 Philosophy and Public Affairs 124,141 (1978). See also Michael Levin, The Case for Torture, Newsweek 7 (February 7, 1982). 3 For more discussion, see Fritz Allhoff, Terrorism, Ticking Time-Bombs and Torture, especially chapter 6 (University of Chicago, forthcoming). 2 | P a g e purchase in the real world or are otherwise relegated . But even if they did, then what? In other words, even if torture can be morally justified in exceptional cases, should we authorize it? In the literature—and conceptually—there are three basic approaches to authorizing torture. The first is not to authorize it at all, which is to say that torture—even if justified—requires some sort of punishable civil disobedience (§1). Another approach is to authorize torture ex ante, such as through torture warrants. On this approach, torture remains prohibited except for when a judge grants permission for its application. Torture warrants have been defended by Alan Dershowitz, and we will evaluate that debate (§2). Finally, torture can be legitimized ex post, which is to say that torture remains illegal but can nevertheless be (legally) justified or excused; our discussion will focus on the justifications of self-defense (§3) and necessity (§4). For the sake of this argument, let us agree that torture is currently illegal, both in domestic and international law. The principal domestic law is USC §§2340-2340A; the US passed this under our obligation to the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT; 1975/1987). Furthermore, torture is decried in §3.1a, §17, §87, and §110 of the Third Geneva Convention (1949). Alongside these legal proscriptions are hortatory ones, including §5 of the Universal Declaration of Human Rights (1948) and the Declaration of Tokyo (1975). 4 The Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment, available at http://www.hrweb.org/legal/cat.html (accessed February 8, 2010). CAT has a somewhat complicated legislative history, thus making it unclear how to date it. The General Assembly of the UN adopted CAT in 1975. It was then opened for ratification by signatory countries in 1985; CAT entered into force in 1987 once it was ratified by the 20th country, Canada. 1975 and 1987 are therefore both commonly listed as dates, depending on what the date is meant to represent. 5 Third Geneva Convention, available at http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6fef854a3517b75ac125641e004a9e68 (accessed May 5, 2008). 6 Universal Declaration of Human Rights, available at http://www.un.org/en/documents/udhr/ (accessed February 8, 2010). 7 Declaration of Tokyo, available at http://www.cirp.org/library/ethics/tokyo/ (accessed May 5, 2008). 3 | P a g e Given this corpus, critics of torture often seem dumfounded that anyone could seriously defend it. There are a couple of simple responses, though; in fact, they are so simple that the dumfoundedness is curious. First, there are completely separate questions as to whether torture is or should be illegal. There have been all sorts of bad laws: those that legalized slavery; those that denied women the right to vote; and those that denied equal rights based on sexual orientation, among others. Ultimately the interesting question is not what the laws are, but rather what they should be. And no matter how many laws oppose torture—or whether those laws are international or domestic—we can always ask whether they get it right, whether they are appropriate for our times, whether they are adequate to protect us, and so on. So, to be clear, let us grant that torture is illegal and instead wonder whether it should be, particularly given exceptional cases in which torture would be the lesser of two available evils. Whether such cases mean that we should revisit our laws is a separate issue altogether—Oliver Wendell Holmes famously argued that hard cases make bad law—but a moral case for torture gives us at least a prima facie reason to think that it should be legal. Second, even if torture should be illegal, it hardly follows that there are not cases in which people should torture. Rather, there might be reasons against having some sort of torture policy—for example, fear of abuse—while, at the same time, acknowledging that torture could be justified in individual cases. Those cases might be rare enough that we need not explicitly build them into our policies, but could rather allow for a post hoc recognition of the appropriate circumstances, as well as 8 See, for example, David Luban, The Torture Lawyers of Washington, in David Luban, ed, Legal Ethics and Human Dignity 162-205 (Cambridge 2007). See also see Marcy Strauss, Torture, 48 New York Law School Law Review 201274, esp. §II (2003/2004). 9 The full quote was actually: “Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distort the judgment.” Northern Securities Co v United States 193 US 197 (1904) (Holmes, dissenting), 400. 10 It bears notice that none of the proposals to be evaluated in this paper entails the wholesale legalization of torture; the proposals considered in §1 and §3 leave torture illegal, while torture warrants (§2) offer a highly circumscribed route to authorized torture. 4 | P a g e the associative legal exoneration. In §§3-4, we will discuss self-defense and necessity in greater detail, but suffice it to say that they work the same way insofar as those defense are just that: defenses against violations of the law. Whether torture can avail itself of either is a critical issue, though the present point is simply that (at least some) social policies are defeasible. The point of these previous two paragraphs is not to defend any substantive position, but rather to locate the issues within the proper dialectical space. And, to reiterate, the illegality of torture is really neither here nor there with regards to our investigation. Rather, what we care about is figuring out how to accommodate justified torture, and there are two possibilities: rework our legal frameworks or else countenance torture within them. What ultimately matters is that we allow torture when it is justified and that we disallow it when it is not. If the legal status of torture prevents a justifiable act of torture from taking place, then something has gone wrong. Maybe that wrong is tolerable given broader policy considerations, but maybe not. Alternatively, paving the way for unjustified torture is no better—and is potentially worse—than not allowing justified torture. Such are the Scylla and Charybdis of torture policy: getting the good torture, but only the good torture. 1. Civil Disobedience While the primary focus in this debate should be on torture warrants and necessity defenses, something should first be said about the possibility of civil disobedience. The idea here would be that we leave torture illegal, and we also fail to provide legal exoneration for (justified) torture. What could be said in favor of such a position? The central thrust has to be that cases of justified torture are 11 §2.2 of CAT explicitly precludes torture in emergency situations: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.” United Nations Treaty Collection, IV.9. Available at http://www2.ohchr.org/english/ (accessed May 16, 2009). More will be said about this issue in §3. 12 See, for example, Seumas Miller, Is Torture Ever Morally Justifiable?, 19 International Journal of Applied Philosophy 179-192 (2005). See also Oren Gross, The Prohibition on Torture and the Limits of the Law, in Sanford Levinson, ed, Torture: A Collection 229-253 (Oxford 2004). 5 | P a g e extremely rare and that any sort of judicial apparatus which licenses that torture—whether ex ante or ex post—threatens a proliferation of unjustified torture. The risks of unjustified torture portend more harm than the harms we (might not) avert in exceptional cases, so we are better off shutting it all down. And, not only do we risk unjustified torture, but we also add a cumbersome judicial function—for example, adjudicating justified from unjustified torture—and compromise judicial integrity by threatening judicial complicity in torture. These negative prospects for our judiciaries further attenuate the case for torture, which is already supposed to be quite tenuous indeed. Granting all of this, what should happen when a case of justifiable torture presents itself? If torture were illegal and if no legal defenses were available to the would-be torturer, then he would torture at his own peril: his act of torture would be legally liable, and legal sanctions could follow conviction. 118 USC §2340A, for example, allows up to twenty years of incarceration for non-domestic torture—whether actual or attempted—and for execution or life imprisonment if torture leads to the death of its victim. Imagine now that torture could be used to save many lives and that an individual had the option of either performing that torture (and saving the lives) or else allowing those lives to be lost. What should they do? Our absolutist friends force the would-be torturer into a precipitous decision between his own freedom and the lives of others: torture and save lives if you like, but then get ready for jail (or execution). There are at least two problems with this offer, one practical and one theoretical. Starting with the practical, it obviously—and on purpose—provides a disincentive to torture. Someone who 13 See, for example, David Luban, Liberalism, Torture, and the Ticking Bomb, 91 Virginia Law Review 1425-1461 (2005). See also Miller, 19 Intl J Appl Philos 179-192 (cited in note 12). 14 For a general discussion of judicial integrity, see Robert Bloom, Judicial Integrity: A Call for Its Re-Emergence in the Adjudication of Criminal Cases, 84 Journal of Criminal Law and Criminology 462-501 (1993). For a discussion of judicial integrity in regards to torture, see Chanterelle Sung, Torturing the Ticking-Bomb Terrorist: An Analysis of Judicially Sanctioned Torture in the Context of Terrorism, 23 Boston College Third World Law Journal 193-212 (2003). See also Vishal Garg, Unwarranted and Unnecessary: An Argument against Judicially Sanctioned Torture (unpublished). 15 Judicial integrity will be discussed more in subsequent sections, but let me just register from the outset a dim view about how such integrity could be undermined by participating in, ex hypothesi, justified torture; it seems to me that such integrity requires that participation. Regardless, more on this to come. 6 | P a g e might otherwise be willing to torture—and save lives—could now be either unwilling or unable to do so, ultimately allowing those lives to be lost. Maybe there are practical gains insofar as unjustified torture would not be as readily administered, but this invocation presupposes that there are not ways to license the justified torture while preventing the unjustified torture. Such a supposition is hardly obvious to me and, in fact, seems false; we shall return to this in §4. Second, though, is the theoretical worry: someone is being punished for doing something that is, ex hypothesi, morally justified. In other words, someone does something that they have moral license to do, and then he gets sent to prison. To me, this is a very strange proposition. The response is that we punish this person so that other people do not perpetuate unjustified torture, but why not just punish those people if and when such unjustified torture occurs? Consider Seumas Miller, who writes that: [the] law in particular, and social institutions more generally, are blunt instruments. They are designed to deal with recurring situations confronted by numerous institutional actors over relatively long periods of time. Laws abstract away from differences between situations across space and time, and differences between institutional actors across space and time. The law, therefore, consists of a set of generalizations to which the particular situation must be made to fit.... By contrast with the law, morality is a sharp instrument. Morality can be, and typically ought to be, made to apply to a given situation in all its particularity.... Accordingly, what might be, all things considered, the morally best action for an agent to perform in some one-off, i.e., non-recurring, situation might not be an action that should be made lawful. Miller’s point is that our institutional and moral commitments can come apart: there are negative consequences of institutionalized torture, but it could still be the case that torture is morally justified in particular cases. And then what? Miller thinks that whoever commits torture should be “tried, convicted, and, if found guilty, sentenced for committing the crime of torture.” To this, we still have to ask: why? We would be sentencing someone for a justifiable act such that other people are less inclined to commit unjustified acts. The problem with this result was articulated by Robert Nozick—albeit in another context—when he objected to rights-based 16 Miller, 19 Intl J Appl Philos 188 (cited in note 12). 17 Id at 190. 7 | P a g e utilitarianism on the grounds that it allows certain people to bear harms such that other reap benefits. For example, a rights-based utilitarian would be seemingly indifferent to whom we torture to avert some act of terrorism—whether a guilty terrorist or his innocent daughter—so long as the rights calculus came out the same in the end. While the context here is somewhat different, the ultimate problem is the same insofar as someone who has not done anything wrong would be punished such that some other group of people is disincentivized. As a general approach to punishment and responsibility, there is something deeply flawed going on here: we should punish and hold responsible the people who do something wrong rather than the people who do not. For example, take the stock objection to utilitarianism in which we convict and execute an innocent man to appease the mob. The entire reason that this example is supposed to be compelling is because it so radically misallocates the locus of punishment and responsibility. And, in fact, it does no better a job in that regard than a proposal which would send the justified torturer to prison. That said, isn’t a proposal like Miller’s exactly what the utilitarian would propose? The entire point of proposals like that is that they lead to better consequences than the alternatives. If this were true, then I would be sympathetic; I simply deny that it is true. Rather, as mentioned above, the focus should be on identifying and punishing the unjustified cases of torture rather than resigning the justified torturers to an identical fate. Miller thinks that the law is more blunt than morality, and this could well be right. However, it hardly follows that the law does not have the wherewithal to be able to distinguish between justified and unjustified torture. For example, the law clearly has the wherewithal to distinguish between justified and unjustified killing; self-defense and necessity defenses are offered in exactly this regard. And, ultimately, Miller agrees: he acknowledges that necessity might be an appropriate defense for the torturer and also allows that, even if such a defense were inappropriate, “the sentence should be 18 Robert Nozick, Anarchy, State, and Utopia 28-33 (New York: Basic Books 1974). 8 | P a g e commuted to, say, one day in prison.” He goes on to say that the torturer “should resign or be dismissed from [his] position; public institutions cannot suffer among their ranks those who commit serious crimes.” As we will see in §4, necessity is an appropriate defense, but even if it were not, the token—as opposed to substantive—punishment sounds right. That said, I still disagree with Miller that resignation should be required for the justified torturer. First, this person simply has not done anything wrong. Second, and as mentioned above, such a disincentive could preclude life-saving torture from taking place. Third, these sorts of torture do not even strike me as crimes, at least not any more than someone killing in self-defense; the entire point is that the actions are justified. At the end of it, the justified torturer should be celebrated for an act of courage or fortitude, in much the same way that we would celebrate a war hero. Politically, this sort of proposal has to be a non-starter but, morally, I just cannot embrace any other conclusion. Civil disobedience has a long history, dating at least to Crito’s failed exhortations upon Socrates to flee the latter’s trial and ultimate execution. And it has noble precedents, such as Rosa Parks’s refusal to obey bus driver James Blake’s order to surrender her bus seat to a white male. The reason that these invocations miss the mark in the torture context has to do with a straightforward conflation between the descriptive and the normative: our question is how the justified torturer should be accommodated, rather than how he is (not) accommodated under present law. If Socrates should have left his cell or if Ms. Parks should have retained her bus seat are only meaningful issues insofar as their present circumstances pitted morality and law in opposition. Our question is not what the justified torturer should do given the current laws, but rather what sort of legal or judicial framework should be enacted given the possibility or reality of justified torture. For these reasons, I reject the position that the justified torturer should be convicted and punished since he is, ex hypothesi, justified in his actions. Let us now consider other possibilities, starting with torture warrants. 19 Miller, 19 Intl J Appl Philos 190 (cited in note 12). 20 Plato, Crito, in Five Dialogues, 43a-54e (Hackett 1981) (G.M.A. Grube trans). 9 | P a g e 2. Torture Warrants The central idea behind torture warrants is that some judiciary authorizes torture before it happens; the torturer tortures with judicial authorization and is therefore not subject to prosecution, at least insofar as the applied torture was reasonably in line with what was authorized (for example, it was not excessive). Torture warrants have been most recently championed by Alan Dershowitz, though they have an older history. To wit, approximately 81 torture warrants were issued in England between the years 1540-1640, for which suspicion of sedition or treason was the most common invocation. Judicially-sanctioned torture was much more common throughout continental Europe, but the goal in Europe was predominantly to elicit confessions rather than actionable intelligence; this is a critical difference from the sorts of warrants we will consider in this section. History notwithstanding, the present discourse certainly centers on the proposal made by Dershowitz. In addition to espousing his ideas in academic works, he has also made them well-known on television and in op-ed pages, thus catapulting the idea into public consciousness. The core idea is quite simple: ...it seems logical that a formal, visible, accountable, and centralized system is somewhat easier to control than an ad hoc, off-the-books, and under-the-radar-screen nonsystem. I believe, though I certainly cannot prove, that a formal requirement of a judicial warrant as a prerequisite to nonlethal torture would decrease the amount of physical violence directed against suspects. At the most obvious level, a double check is always more protective than a single check. In every instance in which a warrant is requested, a field officer has already decided that torture is justified and, in the absence of a warrant requirement, would simply proceed with the torture. Requiring that decision to be approved by a judicial officer will result in fewer instances of torture even if the judge rarely turns down a request. Moreover, I believe that most judges would require compelling evidence before they would authorize so extraordinary a departure from our constitutional norms, and law enforcement officials would be reluctant to seek a warrant unless they had compelling evidence that the suspect had information needed to prevent an imminent terrorist attack. 21 John Langbein, Torture and the Law of Proof: Europe and England in the Ancient Régime 81-128 (Chicago 2006) (originally published 1976). 22 Alan M. Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge 158-159 (Yale 2002). See, more broadly, Dershowitz at 158-160. See also Alan Dershowitz, Tortured Reasoning, in Torture: A Collection, ed, Sanford Levinson 258-280 (Oxford 2004). See also Alan M. Dershowitz, The Torture Warrant: A Response to Professor Strauss, 48 NY L Sch L Rev 275-294 (2003/2004). 10 | P a g e And we can make the idea simpler yet: torture warrants offer the promise of less overall torture, as well as a transparency that secretive torture betrays. Through this sort of judicial authorization, we introduce a check on unjustified torture while, at the same time—and contra ideas considered in §1— have access to justified torture. So what are the problems with Dershowitz’s proposal? From the outset, let me say that I am far more sanguine about its prospects than the negative reception conferred in the literature. That said, we will consider the necessity defense in §4; to my mind, this is the better way to go insofar as it can provide for justified torture without any of the hazards Dershowitz’s proposal engenders. In other words, whatever Dershowtiz’s torture warrants have going for them, we can realize the advantages in some other way and more economically, whether morally, judicially, or legislatively. Still, some direct engagement with his proposal is owed. To me, the most important issue is whether warrants would actually lower the overall incidence of (unjustified) torture. According to Dershowitz, his argument is ultimately a logical one insofar as he thinks that the second check (that is, the judicial one) will necessarily be more restrictive than a single check (say, the field officer’s judgment). However, by comparison, consider that a hypothetical Linda is less likely to be a feminist bank teller than she is to be a bank teller simply because her being a bank teller satisfies the latter, but she has to be a feminist as well in order to satisfy the former. But herein lies the problem for Dershowitz: while Linda cannot—on pain of logic—be more likely to be a feminist bank teller than a bank teller, the second judicial check could increase the incidence of (unjustified) torture. In other words, his argument turns out not to be a logical one at all, but rather an empirical one; furthermore, I suspect that it would founder empirically. 23 For more extended discussion than I will provide here, see J. Jeremy Wisnewski, Unwarranted Torture Warrants: A Critique of the Dershowitz Proposal, 39 Journal of Social Philosophy 308-321 (2008). 24 This famous example—as well as a common failure to reason through it properly—owes to Amos Tversky and Daniel Kahneman, Extensional versus Intuitive Reasoning: The Conjunction Fallacy in Probability Judgment, 90 Psychological Review 293-315 (1983). 11 | P a g e Why? Dershowitz writes that: “In every instance in which a warrant is requested, a field officer has already decided that torture is justified and, in the absence of a warrant requirement, would simply proceed with the torture.... Law enforcement officials would be reluctant to seek a warrant unless they had compelling evidence.” But this is almost surely false. If the field officer faced jail time (compare, §1 or §§3-4), then he would not proceed without some sort of certainty regarding the moral status of torture. Under Dershowitz’s proposal, though, the field officer bears no liability because the judiciary explicitly abrogates that liability in authorizing the torture. Imagine a field officer, for example, who suspects that torture is permissible in some case, but really is not so sure. Under the necessity defense, he tortures at his own peril but, on Dershowitz’s proposal, why not request the torture warrant? There is no disincentive for the field officer to do so because the decision is transferred to the judiciary. Were torture warrants a possibility, field officers could reason that they might as well put in for the warrant because they have nothing to lose. Of course Dershowitz could tack on some penalties for frivolous applications, but now those have to be adjudicated as well. Regardless, borderline and not-so-borderline (yet short of frivolous) applications will still be submitted; the only way to really fix this is to say that the field officer will be punished if his warrant is not granted. But that is not really any different than allowing for the necessity defense, which effectively says the same thing, though probably with differing punishments. Additionally, there are epistemic problems insofar as judiciaries are not trained to evaluate circumstances of life-threatening catastrophes. So what happens is that a field officer—who is trained in such appraisals—asks for a warrant. The judiciary can either trust the officer’s judgment or not. If the judiciary trusts the judgment, then the judiciary renders itself superfluous. On the other hand, the judiciary may choose not to trust the judgment, in which case the judgments are ultimately being made by the judiciary rather than the field officer. Either horn of this dilemma is unpalatable. 25 Dershowitz, Why Terrorism Works at 158 (cited in note 22). 12 | P a g e To my thinking, these are sufficient reasons to reject torture warrants. Some others have been given, though, and they deserve some discussion. Ultimately, though, since I do not defend torture warrants, the other ways that they can go wrong are not of primary interest. Broadly speaking, these other objections can be broken into the following broad categories: 1. torture warrants will lead to more torture (or other moral harms); 2. torture warrants are pragmatically intractable; 3. torture warrants compromise judicial integrity; and 4. torture warrants undermine the values of a liberal democracy. One problem with this list is that its elements are often articulated in a way that does not have anything to do with torture warrants in particular, but rather with torture more generally. (1) could have to do specifically with torture warrants, but the arguments given in support of it tend to be much broader. That said—and as indicated above—torture warrants could lead to more torture, or at least it is not obvious that they would not. So if (1) is framed narrowly enough so as only to attach to torture warrants, then I am sympathetic. (4) is never developed only against torture warrants; it certainly is not in the references indicated above. And, if the concern has nothing intrinsically to do with torture warrants—but rather with legitimized torture—then I am dubious. Suffice it to say that the values of a liberal democracy mandate security and protection of its citizenry, particularly against nefarious attacks. Surely there are 26 This list is roughly adapted from from Wisnewski, 39 J Soc Philos at 308 (cited in note 23). 27 John Kleinig, Ticking Bombs and Torture Warrants, 10 Deakin Law Review 614-627 (2006). See also Uwe Steinoff, Torture—The Case for Dirty Hands and against Alan Dershowitz, 23.3 J Appl Philos 337-353 (2006). See also Andrew Fiala, A Critique of Exceptions: Torture, Terrorism, and the Lesser Evil Argument, 20 Intl J Appl Philos 127142 (2006). 28 For example, time constraints, judges’ differing evidential standards, etc. I thank Jeremy Wisnewski for discussion in this regard. 29 Sung, 23 BC Third World L J 193-212 (cited in note 14). See also Garg, Unwarranted and Unnecessary (cited in note 14). 30 Luban, 91 Virginia Law Review 1425-1461 (cited in note 13). See also Vittorio Bufacchi and Jean Maria Arrigo, Torture, Terrorism, and the State: A Refutation of the Ticking Time-Bomb Argument, 23 Journal of Applied Philosophy 355-373 (2006). 13 | P a g e limits to how far such security and protection can extend, but the moral basis of my position has been established elsewhere. (2) could be a good objection against torture warrants, depending on how it is developed. In some sense, (2) resonates with my contention that we simply do not need torture warrants since we already have the necessity defense. My objection is not as strong as pragmatic intractability, but rather is the more moderate “more trouble than it is worth”. Law and policy are far from my areas of expertise, but I see no principled reason why we could not just legislate in ways that provide for torture warrants. However, this is where the philosopher’s “in principle” runs against the empirical “in practice”, and I will beg off that engagement. The simple point is that we do not need torture warrants; I do not see what we ultimately gain by having them and surely it would take some work to get them going in the first place. This is weaker than (2), but is in a similar pragmatic vein. This notion of judicial integrity, though, is making inroads in the literature, so let us consider it before moving on to the next section. The basic idea has nothing to do with torture in particular, but rather in the more general "role of the judiciary in leading by example and in invalidating or rectifying certain kinds of offensive official action." To put it another way, the judiciary occupies—in addition to its functional role—a symbolic role which is essential to maintaining a lawful society; this role commits it to opposing "pernicious doctrine" in which the ends justify the means. I do not have any complaint about judicial integrity as an abstract concept, but I also do not think it is terribly useful: what will really matter is how we understand certain policies in regards to the desiderata that judicial integrity