## 1. Definition of Torture



Torture includes such practices as searing with hot irons, burning at
the stake, electric shock treatment to the genitals, cutting out parts
of the body, e.g., tongue, entrails or genitals, severe beatings,
suspending by the legs with arms tied behind back, applying
thumbscrews, inserting a needle under the fingernails, drilling
through an unanesthetized tooth, making a person crouch for hours in
the 'Z' position, waterboarding (submersion in water or
dousing to produce the sensation of drowning), and denying food, water
or sleep for days or weeks on
 end.[3]


 There is a dispute in relation to how extreme the infliction of
physical suffering needs to be before it counts as torture and,
doubtless, there is a continuum here. For an attempt to make some
distinctions in this area see Lauritzen 2013. (For detailed
descriptions in a variety of recent and not so recent settings
including in policing and in prisons, see Wickersham 1931, Murton
& Hyams 1969, Nagel 1978, Landau 1987, Bybee 2002, Public
Commission Against Torture in Israel (2003), Levinson 2004,
Greenberg & Dratel 2005, Gross 2009, Clucas et al. 2009,
Feitlowitz 2011 and Rejali 2007.)


All of these practices presuppose that the torturer has control over
the victim's body, e.g., the victim is strapped to a chair.



Most of these practices, but not all of them, involve the infliction
of extreme physical pain. For example, sleep deprivation does not
necessarily involve the infliction of extreme *physical pain*.
However, all of these practices involve the infliction of extreme
*physical suffering*, e.g., exhaustion in the case of sleep
deprivation. Indeed, all of them involve the *intentional*
infliction of extreme physical suffering on some
*non-consenting* and *defenceless* person. If *A*
*accidentally* sears *B* with hot irons *A* has
not tortured *B*; intention is a necessary condition for
torture. Further, if *A* intentionally sears *B* with
hot irons and *B* consented to this action, then *B* has
not been tortured. Indeed, even if *B* did not consent, but
*B* could have physically prevented *A* from searing him
then *B* has not been tortured. That is, in order for it to be
an instance of torture, *B* has to be
 defenceless.[4]



Is the intentional infliction of extreme *mental* suffering on
a non-consenting, defenceless person necessarily torture? Michael
Davis thinks not (2005: 163). Assume that *B*'s friend,
*A*, is being tortured, e.g., *A* is undergoing electric
shock treatment, but that *B* himself is untouched - albeit
*B* is imprisoned in the room adjoining the torture chamber.
(Alternatively, assume that *B* is in a hotel room in another
country and live sounds and images of the torture are intentionally
transmitted to him in his room by the torturer in such a way that he
cannot avoid seeing and hearing them other than by leaving the room
after having already seen and heard them.) However, *A* is
being tortured for the purpose of causing *B* to disclose
certain information to the torturer. *B* is certainly
undergoing extreme mental suffering. Nevertheless, *B* is
surely not himself being tortured. To see this, reflect on the
following revised version of the scenario. Assume that *A* is
not in fact being tortured; rather the 'torturer' is only
pretending to torture *A*. However, *B* believes that
*A* is being tortured; so *B*'s mental suffering
is as in the original scenario. In this revised version of the
scenario the 'torturer' is not torturing *A*. In
that case surely he is not torturing *B*
 either.[5]



On the other hand, it might be argued that *some* instances of
the intentional infliction of extreme mental suffering on
non-consenting, defenceless persons are cases of torture, albeit some
instances (such as the above one) are not. Consider, for example, a
mock execution or a situation in which a victim with an extreme rat
phobia lies naked on the ground with his arms and legs tied to stakes
while dozens of rats are placed all over his body and face. The
difference between the mock execution and the phobia scenario on the
one hand, and the above case of the person being made to believe that
his friend is being tortured on the other hand, is that in the latter
case the mental suffering is at one remove; it is suffering caused by
someone else's (believed) suffering. However, such suffering at
one remove is in general less palpable, and more able to be resisted
and subjected to rational control; after all, it is not *my*
body that is being electrocuted, *my* life that is being
threatened, or *my* uncontrollable extreme fear of rats that is
being experienced. An exception to this general rule might be cases
involving the torture of persons with whom the sufferer at one remove
has an extremely close relationship and a very strong felt duty of
care, e.g. a child and its parent. At any rate, if as appears to be
the case, there are some cases of mental torture then the above
definition will need to be extended, albeit in a manner that does not
admit *all* cases of the infliction of extreme mental suffering
as being instances of torture.



In various national and international laws, e.g., Convention against
Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
(United Nations 1984 - see Other Internet Resources), a
distinction is made between torture and inhumane treatment, albeit
torture is a species of inhumane treatment. Such a distinction needs
to be made. For one thing, some treatment, e.g., flogging, might be
inhumane without being sufficiently extreme to count as torture. For
another thing, some inhumane treatment does not involve physical
suffering to any great extent, and is therefore not torture, properly
speaking (albeit, the treatment in question may be as morally bad as,
or even morally worse than, torture). Some forms of the infliction of
mental suffering are a case in point, as are some forms of morally
degrading treatment, e.g., causing a prisoner to pretend to have sex
with an animal.



So torture is the intentional infliction of extreme physical suffering
on some non-consenting, defenceless person. Is this an adequate
definition of torture? Perhaps not, albeit some theorists, such as
Kamm (2011), adhere to this kind of conception. Consider the following
imaginary counter-example. A woman who is being raped but who is,
nevertheless, still in control of the movement of her jaws sinks her
teeth into the face of her attacker causing him excruciating pain
against which he is defenceless, until finally he desists. Surely the
woman is not torturing her attacker but rather defending herself by
inflicting excruciating pain on her attacker. Evidently what is
missing in the account thus far is the relationship between torture
and autonomy: torture substantially curtails autonomy



So torture is: (a) the intentional infliction of extreme physical
suffering on some non-consenting, defenceless person, and; (b) the
intentional, substantial curtailment of the exercise of the
person's autonomy (achieved by means of (a)). Is this now an
adequate definition of torture? Perhaps not.



Here we need to consider the purpose or point of torture.



The above-mentioned U.N. Convention identifies four reasons for
torture, namely: (1) to obtain a confession; (2) to obtain
information; (3) to punish; (4) to coerce the sufferer or others to
act in certain ways. Certainly, these are all possible purposes of
torture, as is torture performed for sadistic
 pleasure.[6]


 However, in the contemporary the concern is principally with
interrogational torture; torture to obtain information (Skerker
2010; Lauritzen 2013).


It seems that *in general* torture is undertaken for the
purpose of breaking the victim's
 will.[7]
 If true, this distinguishes torture for the sake of breaking the
victim's will from the other four purposes mentioned above. For
with respect to each one of these four purposes, it is not the case
that *in general* torture is undertaken for that purpose, e.g.,
in most contemporary societies torture is not generally undertaken for
the purpose of punishing the victim.



One consideration in favour of the proposition that breaking the
victim's will is a purpose central to the practice of torture is
that achieving the purpose of breaking the victim's will is very
often a necessary condition for the achievement of the other four
identified purposes (and, indeed, for the achievement of sadistic
pleasure). In the case of interrogatory torture of an enemy spy, for
example, in order to obtain the desired information the torturer must
first break the will of the victim. And when torture - as opposed
to, for example, flogging as a form of corporal punishment - is
used as a form of punishment it typically has as a proximate, and in
part constitutive, purpose to break the victim's will. Hence
torture as punishment does not consist - as do other forms of
punishment - of a determinate set of specific, pre-determined and
publicly known acts administered over a definite and limited time
period.



A second consideration is as follows. We have seen that torture
involves substantially curtailing the victim's autonomy.
However, to substantially curtail someone's autonomy is not
necessarily to break their will. Consider the torture victim who holds
out and refuses to confess or provide the information sought by the
torturer. Nevertheless, a proximate logical endpoint of the process of
curtailing the exercise of a person's autonomy is the breaking
of their will, at least for a time and in relation to certain
matters.



These two considerations taken together render it plausible that in
general torture has as a purpose to break the victim's will.



So perhaps the following definition is adequate. Torture is: (a) the
intentional infliction of extreme physical suffering on some
non-consenting, defenceless person; (b) the intentional, substantial
curtailment of the exercise of the person's autonomy (achieved
by means of (a)); (c) *in general*, undertaken for the purpose
of breaking the victim's will.



Note that breaking a person's will is short of entirely
destroying or subsuming their autonomy. Sussman implausibly holds the
latter to be definitive of torture: "The victim of torture finds
within herself a surrogate of the torturer, a surrogate who does not
merely advance a particular demand for information, denunciation or
confession. Rather, the victim's whole perspective is given over
to that surrogate, to the extent that the only thing that matters to
her is pleasing this other person who appears infinitely distant,
important, inscrutable, powerful and free. The will of the torturer is
thus cast as something like the source of all value in his
victim's world" (Sussman 2005: 26). (See also Bernstein
2015.) Such self-abnegation might be the purpose of some forms of
torture, as indeed it is of some forms of slavery and brainwashing,
but it is certainly not definitive of torture.



Consider victims of torture who are able to resist so that their wills
are not broken. An example from the history of Australian policing is
that of the notorious criminal and hard-man, James Finch: "He
[Finch] was handcuffed to a chair and we knocked the shit out of him.
Siddy Atkinson was pretty fit then and gave him a terrible
hiding....no matter what we did to Finch, the bastard
wouldn't talk" (Stannard 1988: 40). Again, consider the
famous case of Steve Biko who it seems was prepared to die rather than
allow his torturers to break his will (Arnold 1984:
 281-2).[8]



Here breaking a person's will can be understood in a minimalist
or a maximalist sense. This is not to say that the boundaries between
these two senses can be sharply drawn.



Understood in its minimal sense, breaking a person's will is
causing that person to abandon autonomous decision-making in relation
to some narrowly circumscribed area of life and for a limited
 period.[9]
 Consider, for example, a thief deciding to disclose or not disclose
to the police torturing him where he has hidden the goods he has
stolen (a torturing practice frequently used by police in
 India).[10]
 Suppose further that he knows that he can only be legally held in
custody for a twenty-four hour period, and that the police are not
able to infringe this particular law. By torturing the thief the
police might break his will and, against his will, cause him to
disclose the whereabouts of the stolen goods.



Understood in its maximal sense, breaking a person's will
involves reaching the endpoint of the kind of process Sussman
describes above, i.e., the point at which the victim's will is
subsumed by the will of the torturer. Winston Smith in George
Orwell's *1984* is, as Sussman notes, an instance of the
latter extreme endpoint of some processes of torture. Smith ends up
willingly betraying what is dearest and most important to him, i.e.,
his loved one Julia.



Moreover, there are numerous examples of long term damage to
individual autonomy and identity caused by torture, to some extent
irrespective of whether the victim's will was broken. For
example, some victims of prolonged torture in prisons in authoritarian
states are so psychologically damaged that even when released they are
unable to function as normal adult persons, i.e. as rational choosers
pursuing their projects in a variety of standard interpersonal
contexts such as work and family.



Given the above definition of torture (elaborated in Miller 2005 and
2009), we can distinguish torture from the following practices.



Firstly, we need to distinguish torture from coercion. In the case of
coercion, people are coerced into doing what they don't want to
do. This is consistent with their retaining control over their actions
and making a rational decision to, say, hand over their wallet when
told to do so by a robber who threatens to shoot them dead (albeit
painlessly) if they don't do so. As this example shows, coercion
does not necessarily involve the infliction of physical suffering (or
threat thereof). So coercion does not necessarily involve torture. Nor
does coercion, which does involve the infliction of physical suffering
as a means, necessarily constitute torture. Consider, for example, a
South African police officer in the days of apartheid who used a
cattle prodder which delivers an electric shock on contact as a means
of controlling an unruly crowd of South African blacks. Presumably,
this is not torture because the members of the crowd are not under the
police officer's control; specifically, they are not defenceless
in the face of the cattle prodder. On the other hand, if - as also
evidently took place in apartheid South Africa - a person was tied
to a chair and thereby rendered defenceless, and then subjected to
repeated electric shocks from a cattle prodder this would constitute
torture.



Does torture necessarily involve coercion? No doubt the threat of
torture, and torture in its preliminary stages, simply functions as a
form of coercion in this sense. However, torture proper has as its
starting point the failure of coercion, or that coercion is not even
going to be attempted. As we have seen, torture proper targets
autonomy itself, and seeks to overwhelm the capacity of the victims to
exercise rational control over their decisions - at least in
relation to certain matters for a limited period of time - by
literally terrorising them into submission. Hence there is a close
affinity between terrorism and torture. Indeed, arguably torture is a
terrorist tactic. However, it is one that can be used by groups other
than terrorists, e.g., it can be used against enemy combatants by
armies fighting conventional wars and deploying conventional military
strategies. In relation to the claim that torture is not coercion, it
might be responded that at least some forms or instances of torture
involve coercion, namely those in which the torturer is seeking
something from the victim, e.g., information, and in which some degree
of rational control to comply or not with the torturer's wishes
is retained by the victim. This response is plausible. However, even
if the response is accepted, there will remain instances of torture in
which these above-mentioned conditions do not obtain; presumably,
these will not be instances of coercion.



Secondly, torture needs to be distinguished from excruciatingly
painful medical procedures. Consider the case of a rock-climber who
amputates a fellow climber's arm, which got caught in a crevice
in an isolated and inhospitable mountain area. These kinds of case
differ from torture in a number of respects. For example, such medical
procedures are consensual and not undertaken to break some
persons' will, but rather to promote their physical wellbeing or
even to save their life.



Thirdly, there is corporal punishment. Corporal punishment is, or
ought to be, administered only to persons who have committed some
legal and/or moral offence for the purpose of punishing them. By
contrast, torture is not - as is corporal punishment - limited
by normative definition to the guilty; and in general torture, but not
corporal punishment, has as its purpose the breaking of a
person's will. Moreover, unlike torture, corporal punishment
will normally consist of a determinate set of specific, pre-determined
and publicly known acts administered during a definite and limited
time period, e.g., ten lashes of the cat-o-nine-tails for theft.



Fourthly, there are ordeals involving the infliction of severe pain.
Consider Gordon Liddy who reportedly held his hand over a burning
candle till his flesh burnt in order to test his will. Ordeals have as
their primary purpose to test a person's will, but are not
undertaken to break a person's will. Moreover, ordeals - as
the Liddy example illustrates - can be voluntary, unlike
torture.



Having provided ourselves with an analytic account of torture and
distinguished torture from some closely related practices, we need to
turn now to the question, What is Wrong with Torture?


## 2. What is Inherently Wrong with Torture?



In terms of the above definition of torture there are at least two
things that are inherently morally wrong with torture. Firstly,
torture consists in part in the intentional infliction of severe
physical suffering - typically, severe pain; that is, torture
hurts very badly. For this reason alone, torture is an evil thing.



Secondly, torture of human beings consists in part in the intentional,
substantial curtailment of individual autonomy. Given the moral
importance of autonomy, torture is an evil thing - even considered
independently of the physical suffering it involves. (And if torture
involves the breaking of someone's will, especially in the
maximalist sense, then it is an even greater evil than otherwise would
be the case.)



Given that torture involves both the infliction of extreme physical
suffering and the substantial curtailment of the victim's
autonomy, torture is a very great evil indeed. Nevertheless, there is
some dispute about how great an evil torture is relative to other
great evils, specifically killing and murder.



Many have suggested that torture is a greater evil than killing or
even murder. For example, Michael Davis claims, "Both torture
and (premature) death are very great evils but, if one is a greater
evil than the other, it is certainly torture" (2005: 165), and
David Sussman says, "Yet while there is a very strong moral
presumption against both killing and torturing a human being, it seems
that we take the presumption against torture to be even greater than
that against homicide" (2005: 15).



Certainly, torturing an innocent person to death is worse than murder,
for it involves torture in addition to murder. On the other hand,
torture does not necessarily involve killing, let alone murder, and
indeed torturers do not necessarily have the power of life and death
over their victims. Consider police officers whose superiors turn a
blind eye to their illegal use of torture, but who do not, and could
not, cover-up the murder of those tortured; the infliction of pain in
police cells can be kept secret, but not the existence of dead
bodies.



On the moral wrongness of torture as compared to killing, the
following points can be made.



First, torture is similar to killing in that both interrupt and render
impossible the normal conduct of human life, albeit the
latter - but not the former - necessarily forever. But equally
during the period a person is being tortured (and in some cases
thereafter) the person's world is almost entirely taken up by
extreme pain and their asymmetrical power relationship to the
torturer, i.e. the torture victim's powerlessness. Indeed, given
the extreme suffering being experienced and the consequent loss of
autonomy, the victim would presumably rather be dead than alive during
that period. So, as already noted, torture is a very great evil.
However, it does not follow from this that being killed is preferable
to being tortured. Nor does it follow that torturing someone is
morally worse than killing him.



It does not follow that being killed is preferable to being tortured
because the duration of the torture might be brief, one's will
might not ultimately be broken, and one might go on to live a long and
happy life; by contrast, being killed - theological considerations
aside - is always 'followed by' no life whatsoever.
For the same reason it does not follow that torturing a person is
morally worse than killing that person. If the harm brought about by
an act of torture is a lesser evil than the harm done by an act of
killing then, other things being equal, the latter is morally worse
than the former.



A second point pertains to the powerlessness of the victims of
torture. Dead people necessarily have no autonomy or power; so killing
people is an infringement of their right to autonomy as well as their
right to
 life.[11]
 What of the victims of torture?



The person being tortured is for the duration of the torturing process
*physically* powerless in relation to the torturer. By
"physically powerless" two things are meant: the victim is
defenceless, i.e., the victim cannot prevent the torturer from
torturing the victim, and the victim is unable to attack, and
therefore physically harm, the torturer. Nevertheless, it does not
follow from this that the victim is entirely powerless
vis-a-vis the torturer. For the victim might be able to
strongly influence the torturer's actions, either by virtue of
having at this time the power to harm people other than the torturer,
or by virtue of having at some future time the power to defend
him/herself against the torturer, and/or attack the torturer. Consider
the cliched example of the terrorist who is refusing to
disclose to the torturer the whereabouts of a bomb with a timing
device which is about to explode in a crowded market-place. Perhaps
the terrorist could negotiate the cessation of torture and immunity
for himself, if he talks. Consider also a situation in which both a
hostage and his torturer know that it is only a matter of an hour
before the police arrive, free the hostage and arrest the torturer;
perhaps the hostage is a defence official who is refusing to disclose
the whereabouts of important military documents and who is
strengthened in his resolve by this knowledge of the limited duration
of the pain being inflicted upon him.



The conclusion to be drawn from these considerations is that torture
is not necessarily morally worse than killing (or more undesirable
than death), though in many instances it may well be. Killing is an
infringement of the right to life and the right to autonomy. Torture
is an infringement of the right to autonomy, but not necessarily of
the right to life. Moreover, torture is consistent with the retrieval
of the victim's autonomy, whereas killing is not. On the other
hand, the period during which the victim is being tortured is surely
worse than not being alive during that time, and torture can in
principle extend for the duration of the remainder of a person's
life. Further, according to our adopted definition, torture is an
intentional or purposive attack on a person's autonomy; this is
not necessarily the case with
 killing.[12]
 Finally, torture can in principle involve the effective destruction
of a person's autonomy.



Let us now turn directly to the question of the moral justification
for torture in extreme emergencies. Here we must distinguish between
one-off cases of torture, on the one hand, and legalised or
institutionalised torture, on the other.


## 3. The Moral Justification for One-off Acts of Torture in Emergencies



In this section one-off, non-institutionalised acts of torture
performed by state actors in emergency situations are considered. The
argument is that there are, or could well be, one-off acts of torture
in extreme emergencies that are, all things considered, morally
justifiable. Accordingly, the assumption is that the *routine*
use of torture is not morally justified; so if it turned out that the
routine use of torture was necessary to, say, win the war on
terrorism, then some of what is said here would not be to the point.
However, liberal democratic governments and security agencies have not
even begun to exhaust the political strategies, and the
military/police tactics short of the routine use of torture, available
to them to combat terrorism.



The most obvious version of the argument in favour of one-off acts of
torture in extreme emergencies is consequentialist in form. For
example, Bagaric and Clarke (2007: 29) offer a version of the ticking
bomb scenario in the context of their hedonistic act utilitarian
theoretical perspective. A standard objection to this kind of appeal
to consequentialism is that it licenses far too much: torture of a few
innocent victims may well be justified, on this account, if it
provides intense pleasure for a much larger number of sadists. As it
happens, Bagaric and Clarke insist that they want to restrict the
practice of torture; only the guilty are to be subjected to torture
and only for the purpose of extracting information. However it is far
from clear how this desired restriction can be reconciled with
consequentialism in any of its various permutations, let alone the
relatively permissive version favoured by Bagaric and Clarke. Why, for
example, should torture be restricted to the guilty, if torturing a
small number of innocent persons would enable the lives of many other
innocents to be saved (as presumably it might). Again, why should
under-resourced Indian police not torture - as they often do in
reality - a repeat offender responsible for a very large number of
property crimes, if this proves to be the only available efficient and
effective form of retrieving the stolen property in question and,
thereby, securing the conviction of this offender, reducing property
crime and making a large number of property owners happy? The
essential problem confronted by consequentialists participating in the
torture debate is that their theoretically admissible moral barriers
to torture are relatively flimsy; too flimsy, it seems, to accommodate
the strong moral intuitions in play.



Faced with the slippery slope, as they see it, of one-off acts of
torture in extreme emergencies transmogrifying into institutionalised
torture, and/or simply appalled by the inherent evil of the practice
of torture, many theorists - Arrigo (2004), Davis (2005), Luban
(2005), Juratowitch (2008), Mayerfield (2008), Brecher (2008),
Matthews (2008), and Shue (2016) - have opted for the opposite
extreme and argued that torture can never be morally justified. Most
of these theorists avoid the problems besetting consequentialists such
as Bagaric and Clarke, and they are on strong ground when providing
counter-arguments to consequentialist perspectives and/or views that
seek to justify torturing the innocent. (But see Arrigo 2004.)
However, their moral absolutism is not without its own problems:
specifically, in relation to torturing the guilty few for the purpose
of saving the innocent many. (See Walzer 1973, Miller 2005; Kershnar
2006 and Steinhoff 2013.)



Before turning in detail to the arguments on this issue, let us
consider some putative examples of the justified use of torture. The
first is a policing example, the second a terrorist example. Arguably,
both examples are realistic, albeit the terrorist ticking bomb
scenario is often claimed by moral absolutists to be utterly fanciful.
Certainly, the policing example is realistic; indeed, it was provided
by a former police officer from his own experience. Moreover, it is
widely reported in the media that Al Qaeda, for example, has in the
past sought to acquire a nuclear device to detonate in a western city
and the 9/11 attacks and bombings in Bali, London, Madrid and Mumbai
should leave no doubt whatsoever that Al Qaeda would use such a device
if they could get their hands on one. So is it entirely fanciful that
there could be such an attack and that an Al Qaeda operative known (on
the basis of intercepted communications) to be a member of the cell
involved in the planned attack might not be arrested, interrogated and
tortured(?) prior to the detonation? At any rate, these are the two
most popular kinds of example discussed in the literature. These cases
include the real-life Daschner case involving the threat to torture a
kidnapper by German police in 2002 which resulted in the kidnapper
disclosing the location of a kidnapped child (Miller 2005).


### 3.1 Case Study - The Beating



Consider the following case study:





Height of the antipodean summer, Mercury at the century-mark; the
noonday sun softened the bitumen beneath the tyres of her little
Hyundai sedan to the consistency of putty. Her three year old son,
quiet at last, snuffled in his sleep on the back seat. He had a summer
cold and wailed like a banshee in the supermarket, forcing her to cut
short her shopping. Her car needed petrol. Her tot was asleep on the
back seat. She poured twenty litres into the tank; thumbing notes from
her purse, harried and distracted, her keys dangled from the
ignition.



Whilst she was in the service station a man drove off in her car.
Police wound back the service station's closed-circuit TV
camera, saw what appeared to be a heavy set Pacific Islander with a
blonde-streaked Afro entering her car. "Don't
panic", a police constable advised the mother, "as soon as
he sees your little boy in the back he will abandon the car." He
did; police arrived at the railway station before the car thief did
and arrested him after a struggle when he vaulted over the station
barrier.



In the police truck on the way to the police station: "Where did
you leave the Hyundai?" Denial instead of dissimulation:
"It wasn't me." It was - property stolen from
the car was found in his pockets. In the detectives' office:
"It's been twenty minutes since you took the
car - little tin box like that car - It will heat up like an
oven under this sun. Another twenty minutes and the child's dead
or brain damaged. Where did you dump the car?" Again: "It
wasn't me."



Appeals to decency, to reason, to self-interest: "It's not
too late; tell us where you left the car and you will only be charged
with Take-and-Use. That's just a six month extension of your
recognizance." Threats: "If the child dies I will charge
you with Manslaughter!" Sneering, defiant and belligerent; he
made no secret of his contempt for the police. Part-way through his
umpteenth, "It wasn't me", a questioner clipped him
across the ear as if he were a child, an insult calculated to bring
the Islander to his feet to fight, there a body-punch elicited a roar
of pain, but he fought back until he lapsed into semi-consciousness
under a rain of blows. He quite enjoyed handing out a bit of biffo,
but now, kneeling on hands and knees in his own urine, in pain he had
never known, he finally realised the beating would go on until he told
the police where he had abandoned the child and the car.



The police officers' statements in the prosecution brief made no
mention of the beating; the location of the stolen vehicle and the
infant inside it was portrayed as having been volunteered by the
defendant. The defendant's counsel availed himself of this
falsehood in his plea in mitigation. When found, the stolen child was
dehydrated, too weak to cry; there were ice packs and dehydration in
the casualty ward but no long-time prognosis on brain damage.



(Case Study provided by John Blackler, a former New South Wales police
officer.)




In this case study torture of the car thief can be provided with a
substantial moral justification, even if it does not convince
everyone. Consider the following points: (1) The police reasonably
believe that torturing the car thief will probably save an innocent
life; (2) the police know that there is no other way to save the life;
(3) the threat to life is more or less imminent; (4) the baby is
innocent; (5) the car thief is known not to be an innocent - his
action is known to have caused the threat to the baby, and he is
refusing to allow the baby's life to be saved.



The classic, indeed cliche, example used to justify torture is
that of the so-called 'ticking
 bomb'.[13]
 (See Bufacchi & Arrigo 2006, Kleinig 2006, Hill 2007, Kaufman
2008, Segev 2008, Wisnewski 2009 and Steinhoff 2013.) Consider
the following case.


### 3.2 Case Study - The Terrorist and the Ticking Bomb



Consider the following case study:




A terrorist group has planted a small nuclear device with a timing
mechanism in London and it is about to go off. If it does it will kill
thousands and make a large part of the city uninhabitable for decades.
One of the terrorists has been captured by the police, and if he can
be made to disclose the location of the device then the police can
probably disarm it and thereby save the lives of thousands. The police
know the terrorist in question. They know he has orchestrated
terrorist attacks, albeit non-nuclear ones, in the past. Moreover, on
the basis of intercepted mobile phone calls and e-mails the police
know that this attack is under way in some location in London and that
he is the leader of the group. Unfortunately, the terrorist is
refusing to talk and time is slipping away. However, the police know
that there is a reasonable chance that he will talk, if tortured.
Moreover, all their other sources of information have dried up.
Furthermore, there is no other way to avoid catastrophe; evacuation of
the city, for example, cannot be undertaken in the limited time
available. Torture is not normally used by the police, and indeed it
is unlawful to use it.




In this case study there is also a substantial moral justification for
torture, albeit one that many moral absolutists do not find
compelling. Consider the following points: (1) The police reasonably
believe that torturing the terrorist will probably save thousands of
innocent lives; (2) the police know that there is no other way to save
those lives; (3) the threat to life is more or less imminent; (4) the
thousands about to be murdered are innocent - the terrorist has no
good, let alone decisive, justificatory moral reason for murdering
them; (5) the terrorist is known to be (jointly with the other
terrorists) morally responsible for planning, transporting, and arming
the nuclear device and, if it explodes, he will be (jointly with the
other terrorists) morally responsible for the murder of thousands.



In addition to the above set of moral considerations, consider the
following points. The terrorist is culpable on two counts. Firstly,
the terrorist is forcing the police to choose between two evils,
namely, torturing the terrorist or allowing thousands of lives to be
lost. Were the terrorist to do what he ought to do, namely, disclose
the location of the ticking bomb, the police could refrain from
torturing him. This would be true of the terrorist, even if he were
not actively participating in the bombing project. Secondly, the
terrorist is in the process of completing his (jointly undertaken)
action of murdering thousands of innocent people. He has already
undertaken his individual actions of, say, transporting and arming the
nuclear device; he has performed these individual actions (in the
context of other individual actions performed by the other members of
the terrorist cell) in order to realise the end (shared by the other
members of the cell) of murdering thousands of Londoners. In refusing
to disclose the location of the device the terrorist is preventing the
police from preventing him from completing his (joint) action of
murdering thousands of innocent
 people.[14]
 To this extent the terrorist is in a different situation from a
bystander who happens to know where the bomb is planted but will not
reveal its whereabouts, and in a different situation from someone who
might have inadvertently put life at risk (Miller (2005); Hill
(2007)).



In the institutional environment described, torture is both unlawful
and highly unusual. Accordingly the police, if it is discovered that
they have tortured the terrorist, would be tried for a serious crime
and, if found guilty, sentenced. We will return to this issue in the
following section. Here simply note that the bare illegality of their
act of torture does not render it morally impermissible, given it was
otherwise morally permissible. Here it is the bare fact that it is
illegal that is in question. So the relevant moral considerations
comprise whatever moral weight attaches to compliance with the law
just for the sake of compliance with the law, as distinct from
compliance for the sake of the public benefits the law brings or
compliance because of the moral weight that attaches to the moral
principle that a particular law might embody. But even if it is held
that compliance with the law for its own sake has some moral
weight - and arguably it has none - it does not have
sufficient moral weight to make a decisive difference in this kind of
scenario. In short, if torturing the terrorist is morally permissible
absent questions of legality, the bare fact of torture being illegal
does not render it morally impermissible.



Note also that since the terrorist is, when being tortured, still in
the process of attempting to complete his (joint) action of murdering
thousands of Londoners, and murdering also the police about to torture
him, the *post factum* legal defence of necessity may well be
available to the police should they subsequently be tried for
 torture.[15]



Some commentators on scenarios of this kind are reluctant to concede
that the police are morally entitled - let alone morally
obliged - to torture the offender. How do these commentators
justify their position?



Someone might claim that torture is an absolute moral wrong (Matthews
2008; Brecher 2008). (For criticisms of these authors see
especially Steinhoff 2013 and Allhoff 2012.) On this view there
simply are no real or imaginable circumstances in which torture could
be morally justified.



This is a hard view to sustain, not least because we have already seen
that being tortured is not necessarily worse than being killed, and
torturing someone not necessarily morally worse than killing him.
Naturally, someone might hold that killing is an absolute moral wrong,
i.e., killing anyone - no matter how guilty - is never morally
justified. This view is consistent with holding that torture is an
absolute moral wrong, i.e. torturing anyone - no matter how
guilty - is never morally justified. However, the price of
consistency is very high. The view that killing is an absolute moral
wrong is a very implausible one. It would rule out, for example,
killing in self-defence. Let us, therefore, set it aside and continue
with the view that torture, but not killing, is an absolute moral
wrong.



For those who hold that killing is not an absolute moral wrong, it is
very difficult to see how torture could be an absolute moral wrong,
given that killing is sometimes morally worse than torture. In
particular, it is difficult to see how torturing (but not killing) the
guilty terrorist and saving the lives of thousands could be morally
worse than refraining from torturing him and allowing him to murder
thousands - torturing the terrorist is a temporary infringement of
his autonomy, whereas his detonating of the nuclear device is a
permanent violation of the autonomy of thousands.



In conclusion, the view that it is, all things considered, morally
wrong to torture the terrorist in the scenario outlined faces very
serious objections; and it is difficult to see how these objections
can be met. It is plausible, therefore, that there are some imaginable
circumstances in which it is morally permissible to torture
someone.



Let us now turn to the other argument of those opposing the moral
permissibility of torture mentioned above. This is not the argument
that torture is an absolute moral wrong but rather that, as Michael
Davis puts it, "For all practical purposes - and so, for
moral agents like us - torture is absolutely morally wrong"
(2005: 170). The basic idea is that while torture is not an absolute
moral wrong in the sense that the evil involved in performing any act
of torture is so great as to override any other conceivable set of
moral considerations, nevertheless, there are no moral considerations
that in the real world have overridden, or ever will override, the
moral injunction against torture; the principle of refraining from
torture has always trumped, and will always trump, other moral
imperatives. Proponents of this view can happily accept that the
offenders in putative examples should be tortured, while
simultaneously claiming that the scenarios in these examples are
entirely fanciful ones that have never been, and will never be,
realised in the real world.



It is important to stress here that the kind of scenario under
discussion remains that of the one-off case of torture in an emergency
situation; what is not under consideration in this section is
legalised, or otherwise institutionalised, torture.



The central claim of the proponents of "practical moral
absolutes" seems to be an empirical one; ticking bomb scenarios,
such as our above-described terrorist case - and other relevant
one-off emergencies such as our above-described police beating case in
which torture seems to be justified - have not, and will not,
happen.



The first point to be made is simply to reiterate that some of these
scenarios - such as police officers beating up kidnappers and
other offenders to rescue children - are not only realistic, they
are real; they have actually happened. What of the ticking bomb
scenario in particular? As stated above, it is by no means
self-evident that this kind of scenario is entirely fanciful. Here it
can be conceded that there is no guarantee that torture would succeed
in saving the lives of (to revert to our specific ticking bomb
scenario) thousands of Londoners. This is because the person tortured
might not talk or he might talk too late or he might provide false or
misleading information. However, it should be noted that the police
*know* that the offender has committed the offence and is in a
position to provide the needed information, i.e. the police know that
the offender is guilty. Moreover, the information being sought is
checkable; if the terrorist gives the correct location of the bomb
then the police will find it - if he does not, then they will not
find it. Further, the police have no alternative methods by which to
avoid the death of the innocent. Given what is at stake and given the
fact that the police know the offenders are guilty, the police are, it
seems, justified in the use of torture, notwithstanding a degree of
uncertainty in relation to the likelihood of success. (See Thiessen
(2010) for arguments that so-called enhanced interrogation techniques
do in fact work.)



The second point is that, practicalities notwithstanding, the
proponents of "practical moral absolutes" still need to
offer a principled account of the moral limits to torture - an
account of torture, so to speak, in the abstract. And these accounts
could differ from one advocate of practical moral absolutes to
another. For example, one advocate might accept that it would be
morally permissible to torture the terrorist to save the lives of ten
innocent people threatened by a non-nuclear explosive device, whereas
another advocate might reject this on the grounds that ten lives are
too few. What the two advocates would have in common is the belief
that even the revised ticking-bomb scenario involving only the death
of ten innocent people is, nevertheless, a fanciful scenario that has
not occurred, and will not ever occur. In short, different advocates
of practical absolutism can ascribe different moral weight to
different moral considerations, and we need to know what these
weightings are for any given advocate. For otherwise it is extremely
difficult to assess the validity or plausibility of the associated
general empirical claim that in practice no act of torture has ever
been, nor ever will be, morally justified. Roughly speaking, the
greater the moral weight that is given by the practical moral
absolutist to refraining from torture - this moral weight
considered both in itself and relative to other moral
considerations - the more plausible the associated general
*empirical* claim becomes. On the other hand, the greater the
moral weight that is given to the principle of refraining from
torture, the less plausible the narrowly *moral* claims of the
practical absolutist become - indeed, at the limit the practical
absolutist becomes a moral absolutist *tout court*.



At any rate, the general point to be made here is that the practical
moral absolutist owes us a principled account of the moral weight to
be attached to refraining from torture relative to other moral
considerations. For without it we are unable to adequately assess
whether or not putative counter-examples to this position are really
counter-examples or not. It is not good enough for the practical moral
absolutist just to give the thumbs down to any putative
counter-example that is offered.



The third general point against the practical moral absolutist is to
reiterate that it has already been argued that torture is not the
morally worst act that anyone could, or indeed has or will, perform.
If this is correct, then it is plausible that there will be at least
*some* scenarios in which one will be forced to choose between
two evils, the lesser one of which is torture. Indeed, the
above-described police beating scenario (certainly) and the ticking
bomb scenario (possibly) are cases in point.


## 4. The Moral Justification for Legalised and Institutionalised Torture



We have seen that there are likely to exist, in the real world,
one-off emergency situations in which arguably torture is, all things
considered, the morally best action to perform. It may seem to follow
that institutional arrangements should be in place to facilitate
torture in such situations. However, it is perfectly consistent to
concede that torture might be morally justifiable in certain one-off
emergency situations and yet oppose any legalization or
institutionalization of torture.



Luban (2005) and (2014), and Waldron (2005), in particular, have drawn
attention to the moral inconsistency and inherent danger in liberal
democratic states legalising and institutionalising torture, a
practice that strikes at the very heart of the fundamental liberal
value of individual autonomy. They have also detailed the tendency for
a torture culture to develop in organisations in which torture is
legalised or tolerated, a culture in which the excesses of torturing
the innocent and the like take place, as in the US army detention
centres in Abu Ghraib in Iraq and Guantanamo Bay in Cuba, and in the
Israeli secret service (General Security Service). Nevertheless, it is
useful to sketch a general argument against the legalisation and
institutionalisation of torture. The argument is consistent with,
indeed at some points it is more or less the same as, the arguments of
Luban and Waldron. However, the argument has some novel elements, not
the least of which is the claim that the view that torture is morally
justified in some extreme emergencies is compatible with the view that
torture ought not to be legalised and institutionalised.



Most of the theorists who oppose the legalisation and
institutionalisation of torture also (at least implicitly) reject the
possibility, let alone actuality, of one-off emergencies in which
torture is morally justified. The argument has been put that there
are, or could well be, such one-off extreme emergencies in which
torture is morally justified. So the first task here is to demonstrate
that these two claims are not inconsistent. Specifically, it needs to
be shown that it does not follow from the fact that torture is in some
extreme emergencies morally justified, that torture ought to be
legalised, or otherwise institutionalised. So the claim is that it is
just a mistake to assume that what morality requires or permits in a
given situation must be identical with what the law requires or
permits in that situation. This calls for some explanation.



The law in particular, and social institutions more generally, are
blunt instruments. They are designed to deal with recurring situations
confronted by numerous institutional actors over relatively long
periods of time. Laws abstract away from differences between
situations across space and time, and differences between
institutional actors across space and time. The law, therefore,
consists of a set of generalisations to which the particular situation
must be made to fit. Hence, if you exceed the speed limit you are
liable for a fine, even though you were only 10 kph above the speed
limit, you have a superior car, you are a superior driver, there was
no other traffic on the road, the road conditions were perfect, and
therefore the chances of you having an accident were actually less
than would be the case for most other people most of the time driving
at or under the speed
 limit.[16]



By contrast with the law, morality is a sharp instrument. Morality can
be, and typically ought to be, made to apply to a given situation in
all its particularity. (This is, of course, not to say that there are
not recurring moral situations in respect of which the same moral
judgment should be made, nor is it to say that morality does not need
to help itself to generalisations.) Accordingly, what might be, all
things considered, the morally best action for an agent to perform in
some one-off, i.e. non-recurring, situation might not be an action
that should be made lawful. Consider the real-life example of the five
sailors on a raft in the middle of the ocean and without food. Four of
them decide to eat the fifth - the cabin boy - in order to
 survive.[17]
 This is a case of both murder and cannibalism. Was it morally
permissible to kill and eat the boy, given the alternative was the
death of all five sailors? Clearly it was not pro tanto morally
permissible, especially given the cabin boy was entirely innocent; but
perhaps it was morally permissible all things considered. And even if
it was not morally permissible all things considered, nevertheless,
arguably it was morally excusable, and indeed the sailors, although
convicted of murder and cannibalism, had their sentence commuted in
recognition of this. But there was no suggestion that the laws against
murder and cannibalism admit of an exception in such an extreme case;
the sailors were convicted and sentenced for murder and cannibalism.
Again, consider an exceptionless law against desertion from the
battlefield in time of war. Perhaps a soldier is morally justified in
deserting his fellow soldiers, given that he learns of the more
morally pressing need for him to care for his wife who has contracted
some life-threatening disease back home. However, the law against
desertion will not, and should not, be changed to allow desertion in
such cases.



Some theorists (Allhoff 2012) have invoked the legal
principle of necessity in order to establish that torture in some
extreme circumstances is or should be legally permissible (Gaeta
2004; Hunsinger 2008). However, the legal principle of necessity
is inherently (and intentionally) vague. It typically applies to
situations in which someone has infringed a law, but done so to avert
a greater evil which is otherwise unavoidable. Here the notion of
greater evil is radically underspecified and, therefore, in need of
interpretation by the courts in any given case. Moreover, the
application of the principle of legal necessity in cases in which it
is state operatives who invoke it, such as in cases of torture by the
members of security agencies, is fraught with danger. For the
protection of the rights of citizens not to be tortured is likely to
be significantly reduced if there is a legal justification for torture
available to members of security agencies. Given the inherent
vagueness of the notion of lesser evil, there is the potential in
their adjudications for judges to favour the members of security
agencies at the expense of ordinary citizens.



We will shortly turn to arguments to the effect that while there may
well be morally justifiable one-off cases of torturing the guilty, it
does not follow that torture should ever be legalised, even in such
cases. However, it has been suggested by Steinhoff (2010) and (2013)
that torturing the guilty can in many cases be understood as torturing
the guilty in self-defence. If so, presumably torturing the guilty
could reasonably be legalised on the grounds that torturing in
self-defence is analogous to killing in self-defence, and self-defence
is an explicit legal justification for killing in most jurisdictions.
Steinhoff has also suggested (2006, 2013) that legalisation would not
necessarily lead to institutionalisation in the sense of the creation
of the institutional role of a torturer, the routinisation and
bureaucratisation of the process of torture, and so on.



Torturing the guilty in self-defence is arguably something of a
misnomer. Firstly, it is not really self defence per se, but rather
the saving of the lives of others. After all, generally the would-be
torturer's life is not at risk, and even if it is at risk in a
particular location, as in some terrorist bombing scenarios, then
presumably the risk can be averted by the torturer simply abandoning
his immobilised victim and fleeing the area. Note that on many
accounts self defence is a more readily acceptable moral justification
or excuse for killing an attacker than is defending the lives of
others (at least, others who are not members of one's family or
close friends). Secondly, torturing in order to save life is
inherently unreliable by comparison with killing in self-defence. This
is because killing an attacker is directly connected to the desired
outcome of removing the threat; indeed, to kill the attacker is to
remove the threat. This is not so with torture. Rather torturing is
one action and removing the threat (e.g., disarming the ticking bomb)
is another act necessarily at some causal remove from the first
action. Moreover, the putative (necessarily indirect) causal
connections between the two actions may well not obtain. Thirdly,
torturing the guilty to save innocent lives does not typically involve
an imminent threat, as typically must be the case in instances of
lawful self-defence in well-ordered jurisdictions. For the threat
posed by (say) a terrorist-bomber is either imminent, as in the case
of a suicide-bomber, in which case there is no time to torture anyone;
or the threat is not imminent in which case there is time to pursue
other options, such as intercepting the communications of other
members of the terrorist cell and, thereby, locating the bomb. Again,
consider typical kidnapping cases. Either the kidnapper is not in
custody in which case he or she cannot be tortured; or the kidnapper
is in custody in which case the threat to the kidnapped child from the
kidnapper in custody is not imminent (the child is either dead or is
alive and no longer under threat from the kidnapper in custody).
Naturally, as we saw in the last section, there may well be a very
small number of exceptional cases in which the threat is more or less
imminent and torture is, nevertheless, a realistic option for removing
the threat (and, indeed, the only option). Accordingly, this small
number of exceptional cases might be analogous to killing in
self-defence. Moreover, in some torturing the guilty scenarios the all
things considered morally best option might be to torture the guilty
party; indeed the general argument for the latter proposition was
outlined in the last section. However, this does not demonstrate that
justified torturing of the guilty to save the innocent they threaten
is essentially a species of justified self-defence and that,
therefore, it ought to be legalised.



It is consistent with the rejection of explicit legalisation of the
torturing of the guilty that, as noted above, there be some form of
legal redress in the very small number of exceptional cases of
torturing the guilty in which the threat to the innocent is imminent
(and torture is morally justifiable all things considered). These
forms of legal redress for the torturer might include the existence of
mitigating circumstances or the application of the legal principle of
necessity - since the cases in question involve a genuinely
dilemmatic situation in which the least harmful of the available
options was chosen and chosen to the advantage of the innocent rather
than the guilty.



The upshot of this discussion is that torturing the guilty to save the
lives of the innocent is not analogous to killing in self-defence.
Specifically, the legalisation of torturing the guilty faces the
problem of imminence; unlike killing in self-defence it almost never
involves an imminent threat. Accordingly, the legalisation of
torturing the guilty is likely to be regarded as extremely
problematic, since presumably legalisation is likely to result in
institutionalisation. Consider in this connection police killing in
defence of the lives of innocent citizens. This involves the creation
of the institutional role of police sniper with all its attendant
training, development and implementation of procedures (including the
requirement that the threat be imminent before shots are fired) and,
more generally, bureaucratisation. This is, of course, not to say that
(as argued above) certain one-off cases of torturing the guilty might
not be both morally justifiable and legally excusable (or otherwise be
able to avail themselves of mitigating circumstances). 



As already noted and contrary to the above-mentioned presumption,
Steinhoff insists that legalization does not in fact necessarily lead
to institutionalization. Specifically, he argues that the legalization
of killing in self-defence has not led to its institutionalization,
and he also claims (as we have seen) that torturing in self-defence is
akin to killing in self-defence. As we have seen, the proposition that
torturing the guilty to save lives is analogous to killing in
self-defence is open to question and there is surely at least a
presumption that legalisation will lead to institutionalisation.
However, there is a further more specific point to be made here in
relation to legalisation and institutionalisation. It is true that
individualistic killing in self-defence on the part of private
citizens has not led to institutionalization, but this is because it
is an individual, non-institutional activity which is subject to
stringent institutional accountability mechanisms (at least in
well-ordered liberal democratic states). But it is extremely doubtful
that an individual citizen is ever going to be in a situation where he
has to defend his life by torturing his attacker. What we are talking
about in this debate is the killing or torturing by institutional
actors, e.g., police, of persons who are attacking third parties
(whether by killing, kidnapping etc.); the third parties in question
are, typically, members of the community. As noted above, the
legalized killing by police of third parties has been
institutionalized (police snipers). So evidently killing in
self-defence does not constitute a relevant case in which there is
legalization but not institutionalization.



Whether or not torture is likely to be institutionalised once
legalised, or is even likely to be institutionalised if not actively
resisted on an ongoing basis, is partly a matter of the
motivational drivers in play. And unfortunately, even in liberal
democracies, when the threat to the community is regarded as
substantial, institutional actors (such as police and military
personnel) have been willing to engage in routinised extra-judicial
killing (India, today) and more than willing to engage in routinised
torture (use of the third degree by police agencies world-wide). In
doing so, they have typically appealed to a self-defence moral
justification ('We had to torture/kill in order to save
lives'). Moreover, in the case of the extra-judicial killings
they have typically helped themselves to and often been aided by the
legal justification of self-defence - 'the Naxalites (in
India) shot at us first and we fired back in self-defence'
(albeit what has also been revealed over time is a culture of
'shoot first and ask questions later'). Torture is much
more prevalent than killing in part because (as Steinhoff argues)
torture is rightly regarded as not necessarily as bad as killing
(criminals tortured by police are typically able to carry on with
their lives, even if in prison) and perhaps also in part because
torture is less susceptible to the available accountability measures
(you cannot hide corpses, at least in liberal democracies). In short,
there is good reason to believe that legalizing torture in contexts in
which there is a substantial threat to the community will lead to its
institutionalization.



It has been noted on a number of occasions that the law and morality
can and do come apart. Moreover, it is plausible that sometimes they
*ought* to come apart. A further point to be elaborated here
pertains to the nature of the sub-institution of torture within the
larger military, police, and correctional institutions. There is a
need to begin with a few preliminary remarks about social
 institutions.[18]



Social institutions, including legal institutions and military,
police, and correctional organisations, have both a massive collective
inertia and a massive collective momentum by virtue of the
participation in them of many agents over a long time who: (a) pursue
the same goals; (b) occupy the same roles and, therefore, perform the
same tasks and follow the same rules and procedures, and; (c) share
the same culture. Accordingly, social institutions and their component
organisations are like very large ocean liners that cannot slow down,
speed up, or change direction very easily. It follows that very
careful thought needs to be given to the establishment of any
additional structure of roles and associated practices that is to be
woven into the fabric of the institution. For such an additional
(embodied) role structure, once it becomes, so to speak, an integrated
working part of the larger institution, is likely to be extremely
difficult to remove; it is now a beneficiary of the inertia of the
institution. Moreover such an additional, but now integrated, role
structure participates in, and influences the direction of, the
institution; it is now a contributing element to the momentum of the
institution.



So what can be said of the likely institutional fit between military,
police, and correctional institutions on the one hand, and the
sub-institution of torture on the other? The role structure of this
sub-institution consists of torturers, torturer trainers, medical
personnel who assist torturers, and the like. The core practice of
torture has been described in an earlier section.



The practice of torture is endemic in many, perhaps most, military,
police, and correctional institutions in the world today, including
democracies such as India. It is only in recent times and with great
difficulty that torture in Australian prisons and police services, for
example, has been largely eliminated, or at least very significantly
reduced. The Australian, British, American, and like cases are
important not only because they illustrate that torture can be endemic
to liberal democratic institutions, but also because they demonstrate
that liberal democratic institutions are able - given the
political will, suitable re-education and training, stringent
accountability mechanisms, etc. - to successfully combat a culture
of torture.



Let us look at some of the evidence from the past. Consider police
organisations in liberal democracies such as the USA. The influential
*Report on Lawlessness in Law Enforcement* from the National
Commission on Law Observance and Enforcement, also know as the
Wickersham Commission, in 1931 found that the use of the third degree
was widespread throughout police organisations in the USA (National
Commission on Law Observance and Enforcement 1931, 4). More recently,
we have the Rampart Reports documenting extensive police
brutality - including extra-judicial killings (Parks 2000,
87-109; Rampart Independent Review Panel 2000, 11-14)
 - and, in the wake of the Rodney King beating, the report of the
"Christopher Commission" into the Los Angeles Police
Department which found that a significant number of LAPD officers
"repetitively use excessive force against the public and
persistently ignore the written guidelines of the Department regarding
force" (Independent Commission on the Los Angeles Police
Department 1991, 9-12). In India - another liberal
democratic state, albeit one at an earlier stage of economic
development - police brutality is institutionalised. According to
a recent Human Rights Watch Report (Human Rights Watch 2009: 14),
"police violence and misconduct are ... widespread and
rooted in institutional practice". Arvind Verma, an authority on
policing in India, states that "Misuse of force, false-encounter
killings (execution by police) and routine use of torture in extorting
confessions are common with the police departments" (Verma 2011:
5).



Now consider prisons in liberal democracies. In the USA in the past
widespread beatings and torture of prisoners (e.g., use of electrodes
on prisoners' private parts) has been documented in multiple
jurisdictions, including Arkansas, Louisiana, Mississippi, Virginia
and Florida. See, for example, Murton and Hyams' classic work,
*Inside Prison, USA* (Murton and Hyams 1969). In Australia
there was the Nagle Royal Commission into New South Wales Prisons.
Nagle reported systematic bashings in NSW prisons. He said of Grafton
Gaol, in particular, that it had a "regime of terror",
"...brutal, savage and sometimes sadistic" (Nagle
1978: 108). He concluded thus: "It is the view of the Commission
that every prison officer who served at Grafton during the time it was
used as a gaol for intractables must have known of its brutal regime.
The majority of them, if not all, would have taken part in the illegal
assaults on prisoners" (Nagle 1978: 119).



When it comes to authoritarian regimes matters are, of course, much
worse. Let us set aside the infamous Soviet Gulags under Stalin and
also Hitler's concentration camps, and rather consider some more
recent examples. The South African Truth and Reconciliation Commission
stated that under the apartheid regime, "torture was used
systematically by the Security Branch, both as a means of obtaining
information and of terrorising detainees and activists. Torture was
not confined to particular police stations, particular regions or
particular individual police officers" (TRC 1998: 187). In Chile
the National Commission on Truth and Reconciliation (NCTR 1993: 1122)
detailed over 2000 victims of human rights violations by the security
forces of the Pinochet regime of which victims approximately half were
killed (hundreds tortured to death) and the remaining half disappeared
after arrest. According to Juan Mendez (a UN Special Advisor who was
himself tortured during the Argentinean military dictatorship):
"Torture became systematic and pervasive during the military
dictatorships of the 1970s and 1980s, but it would be a mistake to
trace its origins only as far as this dark era. In fact, torture was
used by dictatorial as well as elected but authoritarian governments
throughout the twentieth century" (Mendez 2005: 56).



In the light of the evidence it would be a massive understatement to
say that historically the sub-institution of torture - whether in
a lawful or unlawful form - has been no stranger to military,
police, and correctional institutions. Further, there is now a great
deal of empirical evidence that in institutional environments in which
torture is routinely practised it has a massive impact on other
practices and on moral attitudes. For example, in police organisations
in which torture is routinely used the quality of investigations and,
in particular, of interviewing of suspects, tends to be low. Careful,
logically based, questioning on the basis of the available evidence is
replaced by beating up suspects. Thus lower echelon police
investigators in India often have little or no training in best
practice interviewing and (as noted above) they routinely use the
third degree. Again, Baldwin's findings based on hundreds of
taped interviews indicate that the interviewing skills of UK police
during the period of the infamous police use of the third degree
against the Birmingham Six, Guildford Four and Maguire Seven would
have been quite poor (Baldwin 1993). Police in organisations in which
offenders are routinely tortured do not, unsurprisingly, tend to
develop respect for the moral rights of offenders, suspects, or even
witnesses. This is entirely consistent with the excesses detailed by
Luban and Waldron in the US military detention centres in Iraq and
elsewhere, e.g., the Abu Ghraib scandal, and in the case of the
interrogations of suspected terrorists by the Israeli secret service.
Indeed, these excesses are to be expected.



And there is this further point. The prevalence of torture in numerous
military, police, and correctional institutions throughout the world
has taken place notwithstanding that for the most part it has been
both unlawful and opposed by the citizenry.



It is to be concluded from all this that for the most part military,
police, and correctional institutions are *qua* institutions
very receptive to the practice of torture - even when it is
unlawful - and that these institutions *qua* institutions
would relatively easily incorporate the legalised sub-institution of
torture; accordingly, it is very easy to legalise torture and thereby
grow and develop a torture culture in military, police and
correctional institutions. This does not mean that there are not
important differences between, say, police services in authoritarian
states and those in contemporary (though not necessarily historical)
liberal democratic states; obviously there are. Nor does it mean that
most, or even the majority, of the individuals who occupy roles in
these institutions, whether in liberal democracies or elsewhere, are
necessarily receptive *qua* individuals to engaging in the
practice of torture; most of them might not be. However, most of them
would not be torturing people; that would be done by a distinct
minority, as in fact has usually been the case even in institutions in
which torture is unlawful and endemic. The question is whether or not
as individuals they would initially tolerate, and finally accept, the
practice of torture, if it were legally and institutionally
established; the suggestion is that the historical and comparative
evidence is that they would, including in liberal democracies.



A additional conclusion to be drawn is that should the legalised
sub-institution of torture be integrated into any of these
institutions it would be very difficult to remove and would, even in
liberal democracies, have a major impact on the direction, culture,
and practices of these institutions. Again, this is what the
historical and comparative empirical evidence tells, notwithstanding
the initial and even continuing aversion of many, perhaps most, of the
individuals in these institutions to torture as such. Consider the
Israeli case. Limited forms of torture were legal in Israel prior to
1999, but illegal post 1999. However, evidently torture has by no
means been eradicated post 1999. According to the Public Committee
Against Torture in Israel (PCATI), reporting on the period between
September 2001 and April 2003: "The affidavits and testimonies
taken by attorneys and fieldworkers... support the conclusions
...violence, painful tying, humiliations and many other forms of
ill-treatment, including detention under inhuman conditions, are a
matter of course....The bodies which are supposed to keep the GSS
[General Security Service] under scrutiny and ensure that
interrogations are conducted lawfully act, instead, as rubberstamps
for decisions by the GSS...The State Prosecutor's Office
transfers the interrogees' complaints to a GSS agent for
investigation and it is little wonder that it has not found in even a
single case that GSS agents tortured a Palestinian
'unnecessarily'" (PCATI 2003).



The deeper explanation for the prevalence of torture cultures and the
difficulty of eradicating institutionalised torture is no doubt very
complex, but presumably it consists in part in the following elements:
(1) moral docility, as opposed to physical docility, is a feature of
individuals housed in, and materially dependent upon, large,
hierarchical, bureaucratic organisations with strong, relatively
homogenous cultures; (2) the roles of soldier, police officer, and
prison warder necessarily involve the routine use of coercive, and
even deadly, force against dangerous criminals, enemy soldiers, or
terrorists, and therefore undertaking these roles inevitably results
in a degree of moral de-sensitisation and a sense of moral ambiguity
when it comes to torturing criminals and/or terrorists; (3) torture is
an exercise of enormous power, and power is deeply seductive to many
people (and much less dangerous than shooting at armed enemy
combatants or trying to arrest or subdue violent criminals).



Armed with these observations on the difference between law and
morality, and on the nature of the sub-institution of torture in
military, police, and correctional institutions, what now can be said
on the question as to whether or not to legalise and institutionalise
torture in contemporary well-ordered liberal democratic states
undergoing a lengthy period of attacks from terrorist
organisations?



As we saw above, torture is a terrorist tactic. Indeed, arguably it is
the terrorist tactic *par excellence*. Detonating bombs that
kill the innocent has come to be regarded as the quintessential
terrorist tactic. But this is presumably because terrorism has
implausibly come to be identified only with non-state terrorism. At
any rate, the point to be made here is that torture is a terrorist
tactic, and for a liberal democracy to legalise and institutionalise
it, i.e. weave the practice of torture into the very fabric of liberal
democratic institutions, would be both an inherent
contradiction - torture being an extreme assault on individual
autonomy - and, given what we know about the practice of torture
in military, police, and correctional institutions, highly damaging to
those liberal democratic institutions. It would be equivalent to a
liberal democracy legalising and institutionalising slavery on the
grounds, say, of economic necessity. Legalised and institutionalised
slavery is inconsistent with liberal democracy, as is legalised and
institutionalised torture. So if legalised and institutionalised
slavery and/or legalised and institutionalised torture are necessary
because morally required, then liberal democracy is not possible in
anything other than an attenuated form. But of course neither
legalised/institutionalised slavery nor legalised/institutionalised
torture is morally required, quite the contrary. At best, torture is
morally justified in some one-off emergencies - just as murder and
cannibalism might be morally excusable in a one-off emergency on the
high seas, or desertion from the field of battle might be morally
justifiable given a one-off emergency back home - but nothing
follows as far as the legalisation/institutionalisation of torture is
concerned.



A final point here concerns the proposition that, absent
legalised/institutional torture, *unlawful* endemic torture in
the security agencies of contemporary liberal democracies confronting
terrorism is inevitable. The implication here is that unless
legalised, torture will become endemic in these agencies. It has
already been argued that legalisation/institutionalisation of torture
would be profoundly damaging to liberal democratic institutions.
Assume this is correct; it does not follow from this that a torture
culture will not come to exist in those agencies in the context of
torture being unlawful. Nor does it follow that an unlawful torture
culture, indeed an unlawful sub-institution of torture, is inevitable.
Here there is a tendency to use the kind of argument that is plausible
in relation to, say, the prohibition of alcohol. It is better to
legalise alcohol, because then it can be contained and controlled.
This form of argument used in relation to torture is spurious.
Consuming alcohol to excess is not morally equivalent to torture, and
we do not legalise the use of alcohol in emergency situations only.
Legalising the use of torture in extreme emergencies would be much
more akin to legalising perjury in extreme situations. As with
torture - and unlike alcohol - perjury is only morally
justified in some extreme one-off
 situations.[19]
 However, no-one is seriously considering legalising perjury in
one-off extreme situations (at least to my knowledge), and with good
reason - to do so would strike at the very heart of the legal
system.



The fact is that the recent history of police, military, and other
organisations in liberal democracies has demonstrated that torture
cultures and sub-institutions of torture can be more or less
eliminated, albeit with considerable difficulty. The elimination of
torture cultures and sub-institutions can only be achieved if torture
is unlawful, the community and the political and organisational
leadership are strongly opposed to it, police officers and other
relevant institutional actors are appropriately educated and trained,
and stringent accountability mechanisms, e.g., video-recording of
interviews, close-circuit TV cameras in cells, external oversight
bodies, are put in place. It is surely obvious that to re-introduce
and indeed protect the practice of torture, by legalising and
institutionalising it, would be to catapult the security agencies of
liberal democracies back into the dark ages from whence they came.



The discussion has focussed on the legalisation and
institutionalisation of torture, where the practice of torture is
understood in general terms; it ought to be now obvious why torture
should not be legalised. However, some commentators, notably Alan
Dershowitz, have argued that legalised torture could be justified, if
the torture in question was restricted to extreme emergency situations
and subjected to appropriate accountability mechanisms. Specifically,
he has argued for torture warrants of the kind introduced for a time
in Israel (Dershowitz 2003, 2004; and Wisnewski 2008).



The notion of torture warrants is supposedly analogous to surveillance
and telephone interception warrants issued to police by a magistrate
or other judicial officer. The idea is that privacy is a fundamental
right but it can be infringed under certain conditions, such as
reasonable suspicion that the person whose privacy right is to be
infringed is engaged in serious criminal activity, there is no
alternative way to acquire the necessary information to convict
him/her, and so on. In this kind of set-up the magistrate, not the
police, makes the decision as to whether or not these conditions
obtain. Consequently, the infringements of privacy rights are
restricted, and subject to stringent accountability mechanisms.



However, morally speaking, torture warrants are entirely different
from telephone interception or surveillance warrants. First, torture
is a far greater evil than the infringement of privacy. For one thing,
having one's phone tapped or movements filmed is inherently much
less distressing, harmful and morally repugnant than the physical
suffering and loss of autonomy involved in being strapped to a chair
and, say, having someone drill into an unanesthetised tooth. On the
spectrum of evils, torture is closer to murder/killing than it is to
the infringement of privacy. For another thing, torture is a far more
dangerous practice than infringing privacy. For the degree of the
infringement of privacy can be minimised, e.g., the information gained
can relatively easily be kept strictly confidential by the police;
moreover, there is no inherent reason for the police to illicitly
widen a given infringement of privacy by breaching confidentiality.
But in practice torture cannot be restricted likewise. The methods of
torture and the process of torture exist on a continuum, and there is
often an inherent reason to 'push the envelope' and
inflict ever more severe forms of physical suffering on victims;
so-called 'torture lite' becomes full-blooded, no
holds-barred torture. One of the consequences of this continuum of
torture is the ever-present possibility that the victims of torture
will not simply be tortured, but rather be murdered; and in point of
fact numerous people have died in the course of being tortured.



Second, as has already been argued, there is an inherent institutional
receptivity of military, police, and correctional institutions to the
practice of torture; a receptivity which is such that torture cultures
will grow and flourish, notwithstanding Dershowitz's proposal
that only tightly controlled and highly restricted forms of torture
are to be legally admissible. This institutional receptivity has the
consequence that inevitably large numbers of innocent people will be
tortured - as has happened in Israel (see PCATI 2003). Indeed,
even under tightly controlled and highly restricted forms of torture
some innocent persons will inevitably be tortured - just as the
privacy of innocent people is infringed under the existing telephone
and surveillance warrant systems. Arguably, the infringement of the
privacy of some - in fact, many - innocent persons is a price
that we ought to be willing to pay for the sake of preventing serious
crimes. However, it would be preposterous to argue that
(inadvertently?) torturing numerous innocent people is a reasonable
price to pay in return for the information provided by those of the
tortured who are in fact guilty.



Third, the information gained by wire-tapping or surveillance has in
general far greater utility than that gained by means of the practice
of torture - certainly by the tightly controlled and highly
restricted forms of torture of the kind envisaged by Dershowitz.
Indeed, it is by no means clear that the utility - in terms of
saving lives (and leaving aside the costs) - of the system of
legalised torture warrants will be very high. (In Israel, to repeat
the example, it does not appear to have been particularly high.) This
is so for two reasons. One reason is that torture victims typically
tell the torturer whatever they think he wants to hear, e.g., they are
happy to implicate others who are in fact innocent in order to bring
an end to their own agony. And even in relation to desired
*checkable* information there is often the problem of knowing
whether or not the victim of torture is holding out or does not really
know; this is especially the case with hardened terrorists. So by
comparison with telephone and surveillance warrants, torture warrants
are likely to yield unreliable information; there is a serious
question about the quality of much of the information provided under a
system of torture warrants. A further reason to disparage the utility
of torture warrants is that, again unlike telephone and surveillance
warrants, torture warrants are to be issued only in extreme
emergencies. By contrast, telephone interception and surveillance
warrants are issued as a matter of routine, albeit only under certain
(recurring) conditions. Accordingly, the volume of information capable
of being provided under a system of torture warrants is extremely
limited. In short, over time the torture warrant system is likely only
to yield an extremely small quantity of reliable information. This
overall likely lack of utility of the torture warrant system qua
institution is important to keep in mind in the context of a
protracted struggle against terrorism involving ongoing loss of life
on both sides. Here the torture warrant system stands in sharp
contrast to telephone interception and surveillance warrant systems.
Moreover, it is precisely because the set of conditions under which it
is reasonable and effective to infringe privacy rights recurs, that
infringements of privacy rights by police can reasonably be legalised
and institutionalised, e.g., by means of a warrant system. Arguably,
the proponents of the torture warrant system have made the mistake of
proposing a legal/institutional solution to what ought to be regarded
as a one-off moral
 problem;[20]
 hence the inadequacy of their proposal.



At any rate, the conclusion must be that any attempt to compare
torture warrants to surveillance or interception warrants is entirely
spurious. Torture is a very different beast.



In the light of the above three points concerning torture warrants
that have just been made in the comparison between these and
surveillance and interception warrants, the inevitable conclusion is
that the practice of torture could not be contained under a system of
legalised torture warrants and the consequences of its not being
contained would be horrific. Moreover, as noted above, and argued by
Luban, Waldron and others, the damage to liberal institutions would be
incalculable. Finally, the benefits of a system of legalised torture
warrants over the longer term are likely to be slight; and certainly
easily outweighed by the costs. So Dershowitz is entirely misguided in
his advocacy of torture warrants. Indeed, as repeatedly mentioned
above, we have the example of Israel's use, or rather abuse, of
this system to provide specific empirical evidence against the
introduction of torture warrants.



So torture warrants are highly undesirable, indeed a threat to liberal
democratic institutions. Moreover, torture warrants are unnecessary.
As has been argued above, there may well be one-off emergencies in
which the use of torture is morally justifiable. In those cases, the
relevant public officials must bite the bullet and do what is morally
required, e.g., torture the terrorist to save thousands of innocent
people. In such an emergency, the military or police officers involved
will need to break the law on this one occasion. But in itself this is
a small price to pay; and a price the police, the military and the
politicians have shown themselves only too willing to pay in
situations that are far from emergencies.



One final matter. What should be done to the military officer, police
officer, or other public official who tortures the terrorist
if - after saving the city - their crime is discovered? Quite
clearly he (or she) should resign or be dismissed from their position;
public institutions cannot suffer among their ranks those who commit
serious crimes. Further, the public official in question must be
tried, convicted, and sentenced for committing the crime of
 torture.[21]
 Obviously, there are (to say the least) mitigating circumstances, and
the sentence should be commuted to, say, one day in prison. Would
public officials be prepared to act to save thousands of innocent
lives, if they knew they might lose their job and/or suffer some minor
punishment? Presumably many would be prepared to so act in these
circumstances. On the other hand, perhaps many public officials would
never set aside their interest in keeping their jobs and avoiding
minor punishments in order to save innocent lives. If so, this is not
a consideration in favour of legalising torture. For surely the
consequences of setting up a legalised torture chamber and putting
such self-interested and uncaring persons in charge of it are likely
to be horrendous