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Introduction
There is a consensus in contemporary legal canons about torture: it is prohibited absolutely. Article 2 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment declares that 'No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture'. Article 5 of the Universal Declaration of Human Rights asserts unwaveringly that 'No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment' - the only enumerated right left unqualified. 1Article 3 of the European Convention on Human Rights demands that 'No one shall be subjected to torture or to inhuman or degrading treatment or punishment'. Title 18 § 2340A of the United States Code categorically prohibits torture and the State Department of the United States has made it clear that 'No exceptional circumstances may be invoked as a justification for torture'. 2Even a nation that has publicly acknowledged its use of torture declares that international prohibitions against torture 'are absolute', that 'There are no exceptions to them and there is no room for balancing'.3But whatever the legal status of torture is, what it ought to be is in dispute. American law professor Alan Dershowitz argues that torture is inevitable and, as such, it would be preferable if its practice were regulated and constrained by legal mechanisms. To that end, Dershowitz defends the 'torture warrant': a legal mechanism akin to a search warrant that authorizes the performance of non-lethal interrogative torture on a subject. 4But legal officials cannot very well authorize what is illegal, so instituting torture warrants requires legalizing torture.
The novelty of Dershowitz's position should be emphasized: while Dershowitz argues that torture should be legally permitted, he still declares that torture is wrong and absolutely so.5A more typical view holds that torture is sometimes morally permissible but should be legally prohibited.6Another position combines moral and legal absolutism, holding that torture is always morally wrong and should be illegal.7Yet another position rejects both moral and legal absolutism.8
I propose to consider what light Kantian ethics...