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Why Not Torture Terrorists?Moral, Practical, and Legal Aspects of the "Ticking Bomb" Justification for Torture$
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Yuval Ginbar

Print publication date: 2008

Print ISBN-13: 9780199540914

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199540914.001.0001

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The ‘Torture Warrants’ Model

The ‘Torture Warrants’ Model

(p.183) 13 The ‘Torture Warrants’ Model
Why Not Torture Terrorists?

Yuval Ginbar

Oxford University Press

This chapter describes and analyzes the theoretical ‘torture warrants’ model, according to which judges would issue warrants for torture in ticking bomb situations in the same way that they issue search warrants. The model would be based on principles of issuance by an independent authority, specific authorization, and reasonableness. However, procedures for issuing search warrants are administrative, or quasi-judicial, and ex parte, affording few of the safeguards that courts can offer. Search warrants tend to be issued unquestioningly in the overwhelming majority of cases in the two states examined — Israel and the USA. A properly-issued warrant grants the officials concerned immunity from prosecution, entailing impunity for all officials torturing in good faith. Israel's Supreme Court in effect issued ‘torture warrants’ during the Landau years, consistently allowing torture (‘physical methods’, etc.) whenever the State insisted that there was need for it.

Keywords:   torture, legal aspects, ticking bomb situation, Israel, USA, Supreme Court, Constitution, torture models, warrants, search warrants

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