For what it’s worth, no less of a bleeding heart liberal than Alan Dershowitz has advocated legalizing torture in certain situations. And no less a bleeding heart liberal than I agree with him.
Dershowitz mentions that there are some situations in which torture is so obviously necessary, and would actually be used, that we ought to set up a legal framework for its use, just like we do for search warrants. We as a society recognize that a “man’s home is his castle,” and that there are grave concerns about letting the state send armed men running through your house looking for evidence of a crime. But we also know that situations will arise in which the police are so certain that evidence of a heinous crime exists in a man’s house, and feel so strongly about the need to find the evidence and arrest the suspect, that they will go into a man’s home and seize the evidence, law or no law. Given this situation, rather than adopting a Draconian rule that would prosecute the officers who did such a thing, we allow an occasional intrusion into a man’s sanctuary, provided certain legal procedures are followed. Thus, the requirement of a search warrant. That way, police have the ability to get evidence from a suspect’s home when necessary, but do not run rough-shod over individual rights.
A “torture warrant” could work in similar circumstances, albeit with a much higher threshold of proof and necessity.
Consider the following hypothetical for those who think torture is never necessary (yes, I know it’s ripped right out of a cheap Hollywood thriller, so sue me).
An Al Qaeda suspect is capture in New York City, and a portable nuclear bomb is found in his possession. It is set to detonate in 30 minutes unless a code is entered to disable it. The suspect freely confesses to the crime, even laughing at police and telling them that they’ll all soon be dead. 30 minutes is not enough time to move the bomb out of a populated area, nor to find the disabling code by any other means. Furthermore, it is known (somehow) that the suspect has a very low tolerance for pain, such that if you started yanking out his fingernails with pliers, he’d give you the code before you hit the middle finger. Pull out two fingernails, and you save the lives of millions of people. Categorically refuse to use torture, and millions of innocent people die. Would you do it? Remember, no concerns about innocence or the reliability of the information. As soon as he gives you a code, just enter it in, and if it doesn’t work, the torturing continues. No escaping by telling the interrogators what they want even if it’s not true.
I, for one, would gladly go in there with my pliers and start ripping. In fact, I consider those who would refuse to do so nearly as culpable as one who would perpetrate such a disaster in the first place. I can’t even imagine what bizarro moral philosophy you live by. Siege–hurting another is more wrong when it’s for personal or societal benefit than just for the kicks of it? WTF? Torture is never permissible because an innocent person might get tortured? I guess bye-bye to prison then, because an innocent person might get sent to prison. I don’t know about the rest of you, but I’d much rather endure a 10 minute, or even 10 hour torture session, than 60 years in an 8x10 cell.
Anyway, back to Dershowitz’s point. In the hypothetical I’ve described, there can be no doubt that the police actually would torture the suspect, regardless of whether it was legal or not. So, we might as well set up a mechanism to make sure that when torture is used, it isn’t done based on the gut reactions and evaluations of emotionally invested police officers, but by a neutral magistrate who can more calmly and rationally take into account all the relevant factors and decide whether torture is necessary in the given situation.
Final question for the never-torture crowd. Even though you’re not willing to torture, would you ever be willing to inflict some degree of physical pain to save lives? E.g., a maniac is shooting up a local McDonalds. You know that, with minimal person risk to yourself, you can sneak up behind him, bonk him on the head with a package of frozen patties, and knock him unconscious. He will experience a sore bump on the head and a minor headache for the next few days as a result, but no permanent injuries. Do you do it? Or is hurting people, even in defense of others/ self-defense, always wrong? How does this differ from the Hollywood torture scenario I’ve presented above?