1 Or at least part of it. A second volume was submitted but not published because of classified information.

2 Judge Irving Younger a former New York State Criminal Court Judge once observed that “Every lawyer who practices in the criminal courts knows that police perjury is commonplace”. Quoted in Dershowitz, . The Best Defense (New York, Random House, 1982) 51.Google Scholar

3 Indeed, a standard argument currently offered by some prosecutors against Miranda and other exclusionary rules is that these rules increase police perjury.

4 Dershowitz, The Best Defense op cit supra n 2, at xxi–xxii.

5 Id., at 377.

6 United Stales of America v. Edmund Rosner. et al. (S.D. N.Y.) 352 F. Supp. 915 (1972).

7 Wickersham Commission Report, Publications of the National Commission on Law Observance and Enforcement, U.S. Government Printing Office (1931).

8 Bishop, J. Jr., “Control of Terrorism and Insurrection. The British Laboratory Experience” (1978) 42 Law and Contemporary Problems 140.CrossRefGoogle Scholar

9 The Commission observed.

When the accused's confession during interrogation is the main evidence against him, the accused's plea of not guilty in Court is tantamount to an allegation that his confession was obtained by improper methods, and is therefore invalid and inadmissible as evidence against him. Such an allegation necessitates the conducting of a “trial within a trial” on the admissibility of the confession. Needless to say that in such circumstances, the “trial within a trial” constitutes the essence of the trial itself, and the verdict in it is in effect a decision in the entire trial, against the accused or in his favour (R., 20).

10 The Report notes that “[t]he GSS has always attached the utmost importance to collecting information for preventing and thwarting [HTA]. Obtaining evidence for the trial of those interrogated did not have top priority in the work of the interrogators” (R., 16).

11 Although Israel does not have an exclusionary rule like the United States, it does not permit the use of confessions – even true ones – that were not given “of free will”.

12 See Dershowitz, , “Stretch Points of Liberty” The Nation, March 15, 1971.Google Scholar

13 See generally Arnolds, and Garland, , “The Defense of Necessity in Criminal Law. The Right to Choose the Lesser Evil” (1974) 65 J. of Crim Law & Criminology 289.CrossRefGoogle Scholar The authors observe that cases and literature suggest three essential elements of the defense of necessity.

(1) the act charged was done to avoid a significant evil;

(2) there was no other adequate means of escape; and

(3) the remedy was not disproportionate to the evil to be avoided.

Id., at 294.

14 There is an old joke about the principle that “necessity knows no law”. A certain bum bling judge was called “necessity Jones” by his colleagues, because he too knew no law!. It has also been said that “necessity creates the law”. Sir William Scott, in The Gratitudine, observed:

The law of cases of necessity is not likely to be well furnished with precise rules; necessity creates the law; it supersedes rules; and whatever is reasonable and just in such cases, is likewise legal. It is not to be considered a matter of surprise, therefore, if much instituted rule is not to be found on such subject.

3 C.Rob, at 256, 165 E.R. at 459 (1801) (quoted in Williams, G., Criminal Law. The General Part (London, Stevens, 2nd ed., 1961) 728Google Scholar).

15 Penal Law, 1977 (L.S.I., Special volume) sec. 22.

16 See Williams, op cit supra n. 14 at 729 “[T]he doctrine [of necessity] is limited to cases where the harm sought to be avoided is an immediate and physical one Even when the defendant aims at the avoidance of suffering, he is justified in breaking the law only in circumstances of emergency”

17 Williams writes that where necessity justifies the act, “resistance to the act by way of self-defense is generally not permissible” (supra n. 14, at 754). However, Williams notes that there are at least two clear exceptions to this general rule. First, if the person interfered with – in the instant situation, tortured – is unaware of the facts creating the necessity, he will be guilty of no crime in resisting. Secondly, if those interrogating the suspected terrorist are mistaken in their belief of the necessity of their actions, no crime will be committed if the suspect fights back in self-defense.

18 In the recent American motion picture “Mississippi Burning” – which was nominated for 7 Academy Awards – the Federal Bureau of Investigation is portrayed as having used precisely the kind of physical-psychological pressure that the GSS has acknowledged using. The movie is set in 1964, during the height of the civil rights struggle in Mississippi. The Ku Klux Klan is portrayed as engaging in the equivalent of terrorist activities – lynchings, burning down churches, firebombing of homes, cross-burnings – against the black populations and white civil rights workers.

After unsuccessfully attempting to prevent these terrorist acts “by the book”, the F.B.I, is finally given permission to use “whatever it takes”. Among the techniques used was a threat – by a black F.B.I. agent posing as a victim of Klan atrocity – to castrate a Klan member unless he provides incriminating information against others; an F.B.I. agent “shaving” a Klan member and deliberately nicking his jaw as he brings the razor close to his throat; and an elaborately staged attempted lynching of a potential Klan informant by F.B.I. agents posing as other Klan members who suspect the potential informant of cooperating with the F.B.I.

The important point is not whether these precise techniques were, in fact, used by Ihe F.B.I. during its war against KKK terrorists. Undoubtedly similar physical-psychological pressures have been employed by some F.B.I. agents on some occasions. The important point is that American audiences in 1989 obviously approve of doing “whatever it takes” – particularly psychological-physical stratagems calculated to overcome the will of the suspect – to prevent acts of terrorism against innocent victims.