Alan Dershowitz on regulating beatings and waterboarding.

Question: How did you become involved in examining the question of torture?

Alan Dershowitz: I looked around and I said, We’re torturing people. We use torture. I think that’s wrong. I’m personally opposed to torture, but we’re using it. So I said, “If we’re going to use it, we need a jurisprudence of torture.”

“Oh my god! A jurisprudence of torture? How can you say that? You’re a monster. You’re Torquemada.”

No. I’m trying to stop torture. And the way to stop torture is to say, “All right. If you think you have to use moderate forms of physical pressure in the extraordinary case of a ticking bomb terrorist who knows where a nuclear bomb is in the city of New York, all right. Create an exception for that. But limit it. Indicate.”

And people say, “No, no, no. We don’t want that. We’d rather have the President, or the Vice President, or some people on the ground do it on their own." Just don’t ask, don’t tell. A wink and a nod.

That’s not my way. My way is always to have the rule of law govern everything that we do, whether it be torture; whether it be execution; whether it be race-based affirmative action; whether it be censorship on the Internet.

Things that I oppose, I still want to have a jurisprudence. I oppose the death penalty, but can you image having a death penalty without a jurisprudence to constrain it?

Or take the problem of an airplane flying toward a building with lots of people in it. And we’re pretty sure the airplane has been high jacked but we’re not positive. Somebody has to make a decision to shoot down that airplane and kill the 300 people on it who might not be crashing it, who might be crashing it. We can’t just leave that to the person on the ground. We have to have an advanced jurisprudence to figure out when we can shoot that airplane down and when we can’t.

Everything needs a jurisprudence. That’s my mantra.

And if there’s ever been a contribution that I’ve made, it’s the contribution of creating a rule of law, creating a jurisprudence for everything we do, no exceptions.

Recorded On: June 12, 2007