That is what Alan Dershowitz proposes:

Torture warrants, Dershowitz insists, are one way to shine law’s light on this darkness, especially if one believes there are times when torture should be permitted. Many will be horrified that Dershowitz even allows himself to think such thoughts...[But] Even those who believe in an absolute prohibition against torture would be well advised to ponder the legal paradigm shift that Dershowitz says has occurred and that so worries him. If torture is inevitably going to take place in a preventive state, should we be content to allow it to exist outside the law? At the end of his new book, Dershowitz warns: “We need to develop a jurisprudence for the emerging preventive state. … Black holes in the law are anathema to democracy, accountability, human rights and the rule of law.”

Horrifying - but less horrifying, perhaps, than the total lawlessness of Bush-Cheney.

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