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Sensing the need for serious public debate on the use of torture to extract information from suspected terrorists, University of Texas School of Law professor Sanford Levinson called on 17 of his friends and fellow legal scholars to address the issue. The result of their efforts is a new book, “Torture: A Collection,” a series of essays edited by Levinson and published last month by Oxford University Press. Levinson, who teaches American constitutional law at the UT law school and government at the university, says he began thinking about the grim subject of torture after participating in a 2002 symposium on keeping promises and commitments. The United States condemned the use of torture in 1994 when it ratified the United Nations Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment. Levinson says Article 2.2 of that agreement “absolutely promises” this country won’t use torture, even in exceptional circumstances, whether it’s a state of war or a threat of war, internal political instability or any other public emergency. But after the Sept. 11, 2001, attacks on America, some people began saying, “We may have to move to torture in order to get information,” Levinson says. Levinson says he was prompted to propose the book after reading a series of articles on torture published in The Economist magazine in January 2003. The gist of those articles, he says, was that the United States was using some questionable methods of interrogation and there was no real debate on it. Levinson says he told a friend who is an editor at Oxford University Press that the issue should be debated and suggested the book. “[A]ll of us, whether lawyers or ordinary citizens, are forced to try to synthesize the two competing realities of, first, the absolute prohibition against torture and other inhuman and degrading acts and, second, the obvious fact that not only is it occurring but also, just as significantly, serious and thoughtful people appear to justify it,” Levinson wrote in the book’s first chapter. It’s an issue that some may not want to discuss, however. Levinson says he finds it “scandalous” that PBS “News Hour” host Jim Lehrer, moderator for the first presidential debate this year, failed to ask President George W. Bush and U.S. Sen. John Kerry, D-Mass., one question about the abuses that U.S. military personnel allegedly subjected prisoners to at Abu Ghraib prison in Iraq, even though the debate focused on foreign policy. Levinson, who says he is “blessed by knowing a lot of interesting people,” contacted legal scholars, political theorists and others who he thought would be interested in debating the issue. The contributors include Judge Richard Posner, of the 7th U.S. Circuit Court of Appeals in Chicago; Henry Shue, senior research fellow in politics at Merton College, Oxford; Alan Dershowitz, professor at the Harvard Law School; and Jean Bethke Elshtain, professor of social and political ethics at the University of Chicago. What he wanted to achieve in the book, Levinson says, is to present a broad spectrum of viewpoints on the use of torture. “The book simply would not have worked if it had been clearly biased one way or another,” he says. In his essay, Dershowitz wrote that he believes the United States and some of its allies are using torture and suggested the use of a “torture warrant,” thereby requiring “some kind of advanced approval for the use of limited force in extreme situations.” Obliging those who engage in torture to obtain a warrant to sanction the activity is “a stunningly bad idea,” Elshtain wrote. In e-mail correspondence with Texas Lawyer, Elshtain says that having judges issue torture warrants “suggests that it is sometimes legitimate and even worthy to deploy torture.” Elshtain distinguishes between what she terms “torture 1,” which involves horrific activities such as touching electric prods to genitals, and “torture 2,” which includes psychological manipulation, sleep deprivation and shouting. Instead of issuing torture warrants, it would be better that torture 1 be prohibited and torture 2 be “reluctantly permitted as an exception” to be carried out by people carefully trained in this form of interrogation, she says. In her essay, Elshtain wrote that if she were the parent or grandparent of a child whose life might be spared by torturing someone to obtain information about an act that could kill the child and hundreds of others, she would want officials to “rank their moral purity as far less important in the scheme of things” than getting the information. “But I do not want a law to “cover’ such cases, for, truly, hard cases do make bad laws,” she wrote. In an interview, Dershowitz says Elshtain would favor torture in certain cases but opposes a law regulating it. Dershowitz says his approach would lead to accountability by those who use torture. Elshtain’s “approach leads to Abu Ghraib; my approach leads away from it,” he says.

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