In various countries in which torture is practiced, theologians have expressed concern about the morally corrosive effect of the practice on those whose job it is to do the actual torturing. So scientists have addressed this problem by devising a machine that obviates the need for direct human involvement in the process of torture. This machine directly stimulates the pain centers in the brain and can be set to varying levels of intensity. It does not damage the victim’s body. But it can be left running indefinitely. A terrorist has acquired one of these machines. He has taken one innocent hostage whom he has strapped into the machine, which has a timer that is set to begin inflicting great pain in 24 hours unless his demands are met. We have captured the terrorist but do not know where his machine is located. Our best chance of getting him to tell us is to put him into one of our torture machines. It is reasonable to expect that we will be able to extract the information from him, though because he is a tough character, we expect to have to set our machine at a higher level than that to which his is set.
In this example, we would not practice torture to prevent killing but to prevent torture. And because we would be torturing one person to prevent the torture of only one other person, our justification cannot be that torture is necessary to prevent a catastrophe. Indeed, because our machine would be set at a higher level than his and might have to run longer (since we would keep ours going as long as his continued to run), the harm we would cause would be greater than that which we would avert.
Still, it seems to me that we would be morally justified in torturing the terrorist in this example if that were the only way we might obtain from him the location of his torture machine. Indeed, I think we would be morally required to torture him. The form of justification is the same as in paradigm cases of self-defense. Through his own wrongful action, the terrorist has made it the case that either he or his innocent victim will be tortured. Our torturing him is a necessary and proportionate defense of his potential victim from an unjust harm that the terrorist will otherwise wrongfully inflict, albeit through action that is now completed. Because the terrorist is morally responsible for the threat of unjust harm that our defensive action is intended to avert, we will not wrong him, nor will he have any justified complaint against us, if we torture him. For he has acted in a way that makes him morally liable to our necessary and proportionate defensive action. Note, finally, that it is within the terrorist’s power to make it the case, merely by abandoning his own wrongful plan, that neither he nor anyone else is tortured.
The example is, of course, artificial and unrealistic, perhaps to an even greater extent than the case of the ticking bomb. But I believe that analogous cases can and do arise in practice, and that the structure of justification can be the same in these actual cases. There have been instances in which Israeli security forces have captured a suicide bomber with bombs strapped to his body before he could detonate them. And these forces have also captured persons in the process of making or transporting such bombs. In some of these cases, the persons captured have been tortured in order to force them to divulge information about other attacks that have been planned for the future. This information has then enabled the security forces to take preemptive action to thwart the planned attacks, thereby saving the lives of an indeterminate number of unidentifiable potential victims.
(Jeff McMahan, "Torture, Morality, and Law," Case Western Reserve Journal of International Law 37 [2005]: 241-8, at 243-4 [italics in original; footnote omitted])
Note from KBJ: Many philosophers have taken themselves out of the discussion of torture by holding that torture is never permissible, no matter how much evil will be averted thereby. This is an abdication of professional responsibility, not to mention an encouragement for nonphilosophers to think that philosophy has nothing to contribute to public affairs. McMahan, to his credit, stays in the fray. Sometimes torture is forbidden; sometimes it is required; sometimes it is neither forbidden nor required but merely permissible. The philosopher's job is to sort things out, not to pretend that there are no morally relevant differences between cases. There are almost always morally relevant differences between cases, whether the topic is abortion, euthanasia, or the killing of animals. As for why so many philosophers take themselves out of the fray when it comes to torture, I chalk it up to squeamishness. Philosophy attracts squeamish people.
Keith Burgess-Jackson, J.D., Ph.D. 