There's a thought-provoking post over at the Liberty Corner on torture. I think it takes the analysis in the wrong direction, though. Here's how I see it. For the purposes of this discussion, I will define torture as being the intentional infliction of intense physical or psychological pain upon a prisoner in an effort to elicit information or discourage others. By that definition, treatment of detainees that has been reported usually does not meet that standard, but sometimes has.
Government, at heart, is supposed to be about enshrining in law general policies that usually result in the best outcome, with the desirability of societal survival and societal liberty given equal strength. (The dead cannot enjoy their liberty, nor is life worth living without it). The key is that government cannot formulate a general rule that produces the right outcome in every situation, and when it tries to do so, the result is often worse. A well-designed government will build in certain exception-handling mechanisms to ensure the right result without requiring that the rules be changed to reach it.
It is morally unconscionable for a supposedly free society to engage in torture of innocents. There is room for argument on those who are guilty, but none for torturing those who have committed no wrong. Since there is no timely and reasonable means of accurately determining guilt in the usual justification scenario (a ticking time bomb hidden somewhere in a major city), it's not acceptable to engage in torture under those circumstances. The risk that you have the wrong man, or that there isn't even a right man at all, is far too high.
In the United States, the 8th Amendment prohibits "cruel and unusual punishment", under which this specific scenario would almost certainly fall. So under the US Constitution, you cannot torture a specific person; you might be able to argue that a sufficiently large group of prisoners would render the activity "usual" enough to pass muster. But the specific-person scenario is completely forbidden.
Are we then to conclude that there is no answer to the nightmare scenario?
No, because there is an answer. It's not a pretty one, but it's effective. As a society, as a government, as a general rule, we cannot ever condone torture; but in a specific situation, with specific individuals, and specific evidence, it is possible for an individual to conclude that the present situation constitutes an exception to the rule.
Once that determination is made, the individual chooses to discard the social rules and act instead according to the dictates of the specific situation. They are acting outside the law and doing so deliberately. The act of torture takes place, and the bomb is found or the innocent person suffers. And society prosecutes and convicts the torturer for his illegal actions.
By taking the illegal path, the individual is departing from the mantle of government authority and moral certitude. He is taking personal responsible for the decision to violate the laws of his society, deeming that the personal risk in doing so -- even if that results in a criminal conviction -- is worth the benefits.
Having accepted the personal cost of his actions, our individual has two remaining chances to convince society he was correct in his choice under the circumstances. The first is through jury nullification; although modern courts usually won't even let the topic come up, a jury can always decide that the facts are sufficient to convict beyond a reasonable doubt, but the circumstances justified it, and refuse to convict on that basis. The jury will have had time to consider the situation, will have seen the evidence, and will know probably the most important factor in this case: was a "ticking time bomb" discovered, or was the alleged terrorist innocent?
The second opportunity is a Presidential pardon. This can come into play if there was evidence the jury wasn't allowed to see due to national security concerns, or even if the President simply feels that an injustice was done. There is a political cost to be paid for a pardon, which will help to ensure they are not handed out casually.
Those two options, coupled with an individual's decision to take personal responsibility for a necessary action, are our
societal exception-handling mechanisms. Both allow for results that are contrary to the general rule, without requiring (as a judicial ruling would) that the rules be changed to accomodate a special case.
So I suppose my thoughts on torture can be summed up as: Never the rule, but potentially an exception.
The problem I have with most of the media (and blogospheric) discussions of torture is that they are considering the question in terms of changing the rules. We do not have to do that and we should not do that. We need a clear and unambiguous statement of policy that torture is not acceptable policy. If there are exceptions to that, treat them as exceptions, not a new rule.