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The legal hullabaloo created by Harvard Law School Professor Alan Dershowitz — his proposal for so-called “torture warrants” to help police convince suspected terrorists to confess details of pending plots against Americans — blew into New York City recently. Former mayor Edward I. Koch, no stranger to hullabaloos himself, told an April 30 dean’s lunch gathering at the Benjamin N. Cardozo School of Law that he opposed any such judicial imprimatur. But he scoffed at civil libertarians who resort in knee-jerk fashion to international law that deems torturers hostis humani generis — enemies of all humanity — and who would ignore the daily fact of police officers the world over engaging in time-stained methods of physical duress. “I have only contempt for them,” said Koch. “That’s ri-DIC-ulous.” The proposal by Professor Dershowitz is rooted in a classic philosophical question: Is it right to commit a small wrong in the interest of preventing a larger wrong? A decision this year by Israel’s highest court suggested as much: “The Supreme Court of Israel … or the legislature should take the … step of requiring the judiciary to assume responsibility [for torture] in individual cases.” Speaking in the context of the Israeli decision, Professor Malvina Halberstam related the doctrine of capital punishment to the idea of inflicting horrid discomfort to a criminal suspect in the cause of perhaps saving the lives of many others. “If you’re allowed to kill him, you’re allowed to torture him,” said Professor Halberstam, a member of the Advisory Committee of the ABA Standing Committee on Law and National Security. “You want it [torture] done by a special person. The onus should not be on the cop.” Koch’s apparent middle-ground take would be to trust police officers to deal as they see fit with suspects reasonably believed to possess direct knowledge of imminent terrorist acts of mass destruction. As Koch put it, “I am for trusting the cops. My position is, let the cop make the decision. If the cop is wrong, he’s going to jail.” As for the beaten suspect, said Koch, “The guy who gets tortured is going to get compensated when he sues.” Cardozo Professor Peter Lushing was quick to complain, “It’s a contradiction!” To which Koch retorted, “Even if it is a contradiction — so what?” Professor Lushing, formerly the executive director of the New York Council of Defense Lawyers, was not persuaded. Surrounding him at a long table were faculty colleagues, a select group of students and a few alumni. They dined on sandwiches of salmon, eggplant and avocados, with brownies and cookies for dessert. “The problem is real, but this discussion is unreal,” said Professor Lushing. “I don’t think it’s as simple as these sentences make it.” In a few dozen sentences spread over less than two pages of his latest book, “Shouting Fire: Civil Liberties in a Turbulent Age” (Little Brown, Boston), the absent Professor Dershowitz suggested that in an era of terrorism torture warrants should become the legal equivalent of search warrants. In his book, Professor Dershowitz wrote, “The suspect would be given immunity from prosecution based on information elicited by torture … The warrant would limit the torture to non-lethal means, such as sterile needles being inserted beneath the nails to cause excruciating pain without endangering life.” William F. Schultz, executive director of Amnesty International USA, reviewed “Shouting Fire” for the May 13 issue of The Nation magazine. “He [Dershowitz] is a persuasive fellow and eventually he may even succeed in helping erode the international prohibitions on torture,” wrote Schultz. “That will be a sad day, no doubt, but how comforting it will be to know at that point that, thanks to the professor, the needles will be sterile.” On behalf of Cardozo Law and the assembled diners, Dean David Rudenstine officially thanked Koch for weighing in on the whole matter. Professor Lushing offered his own thank-you to Koch: “Only you could make torture pleasant to discuss.”

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