In debate about whether American soldiers went too far in their treatment of Iraqi prisoners, there has been some discussion about whether and when torture might be a licit means for extracting information - say, in order to stop a bomb that will kill large numbers of people. What isn't discussed, however, is what should happen after the torture is used. It's a very good question, I think, and answering it offers something to the larger debate about the licitness of torture generally.

John Quiggin writes at Crooked Timber:

My answer is that the torturer should immediately turn themselves in, and plead guilty to the relevant criminal charges. I think this answer can be defended from a wide variety of perspectives, but the intuition is simple. If the situation is grave enough to warrant resort to torture, it’s certainly grave enough to oblige someone to take actions that will result in losing their job and going to jail.

In consequentialist terms, it’s desirable in general that laws against torture should be obeyed. Since few people will want to follow such an example except in similarly extreme circumstances, immediate confession will undermine the law less than committing torture and getting away with it.

A plea in mitigation might be considered in cases like the one described above - a proven urgent and immediate danger, followed by a voluntary confession - but even so, the torturer should be removed from their job and spend some time in prison. In any case where a confession is not made, no claims about mitigating circumstances should be admitted.

This is a very interesting way to frame the issue, I think (although I think that I would add: if torture is used and it can later be shown that the person didn't have the information, the punishment for the torturer should be greater). Assuming that you will get caught and that you will receive a much harsher sentence if you don't confess, then any would-be torturer is placed in a situation of greater responsibility: they must not only be willing to sacrifice the subject in order to extract information, but they must also be willing to sacrifice themselves. If someone isn't willing to lose their job and go to jail in order to save the people in question, it's absurd that they would be willing to torture another human being in order to save those people.

Increasing the penalties for the use of torture and going easy on a torturer only if they turn themselves in and if they used it on someone who actually had information to convey could serve to both reduce its frequency and promote justice for all concerned. In this situation torture is still condemned, but at the same time it is treated realistically and it is acknowledged that, sometimes, there are situations so serious that it might be the only method available. This is, I think, a more morally coherent and viable approach than Alan Dershowitz's idea of creating "torture warrants" which assume that torture is moral licit in some cases and places the responsibility for using it on some judge.

David Bernstein disagrees:

Let's say, in the circumstances above, five FBI teams raided five suspected terrorist hideouts, and in good faith exerted physical pressure on the residents of all of them, but only one group of suspects actually knew where the bomb was. Let's even say some of the suspects were innocent. An apology, and compensation, might be due to the latter. But the idea that the physical coercion is so terrible that it should be punished with jail time even when the torturers were in good faith trying to save millions of lives from a ticking time bomb strikes me as one of those ideas only an academic could come up with.

I find it interesting that David Bernstein uses the phrase "physical coercion" rather than the word that Quiggin uses and is most accurate: torture. This word covers things like burning, electrical shocks, beatings, cutting, chopping off of fingers, rape, acid, and much more. None of this, according to Bernstein, is so bad that a person should actually be jailed for doing it if the torture is done to an innocent person as part of an effort to save millions of lives. An apology and maybe even some sort of monetary compensation are fine, but none of those personally responsible for the torture should have to pay any price for it.

That indicates a profound lack of understanding about the "Calculus of Torture," as Jef Raskin explains:

[H]e balanced one guilty party killed against hundreds of innocent lives saved. However, that is not the right equation. For each such success, there are thousands who are tortured or murdered on the guess that they will reveal valuable information. More often than not, as history shows, they do not possess the information sought or do not have the power to do what the torturer wishes them to. But such statistics and the fact that information revealed under torture is often unreliable are only a footnote to the real issue. Once you have condoned torture and murder as tools, they are taken up by those who use them to advance personal, criminal, or sectarian aims. By using torture, a government or organization defines what is moral.

As I note above: if the cause is really so great and so important that it is worse burning, cutting, and maiming a person - possibly an innocent person or possibly a guilty person who knows nothing relevant - then why isn't it important enough for the "good guys" to risk jail time? If a person isn't willing to sacrifice a few years in jail, then I don't trust their willingness to sacrifice the health of another human being. I certainly wouldn't trust David Berstein with that life or my own, for that matter. Berstein's willingness to not only use torture, but not punish those who use it against the innocent, reveal what he defines as moral - and it's not a pretty sight.

It is precisely that cavalier attitude that Quiggin's suggestion could overcome: by taking personal responsibility for the torture and paying a price, it is far less likely that it will be used needlessly and worthlessly. Of course, the situation where we have to torture a single person in order to save millions will never exist. In real life, we have to torture multiple people in order to possibly save others from some dimly understood threat. By saying "yes, use torture" in the "Ticking Bomb" scenario, you are giving license to use torture in other circumstances where the threat isn't as great but the harm to the innocent will surely be worse. That's another advantage of Quiggin's suggestion: it could make the use of torture in less dangerous circumstances less likely.

Read More:

• Guide to Ethics and Morality
• War on Terrorism