Talk about timely scholarship! Prof. Oren Gross of U. Minn. Law has just published Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience, 88 Minn. L. Rev. 1481 (2004).
Here (minus the footnotes) is his conclusion to a long and complex argument, a conclusion which resembles my views, right down to citing Charles L. Black, Jr. approvingly, but ultimately come out somewhat more accepting of the idea that although torture should always be prohibited in order to discourage resort to it in any but the most extreme circumstances, there exist sets of real-life circumstances were torture might be morally justified, and thus would and should be publically pardoned or praised after that fact:
… the official disobedience model imposes a significant burden on public officials. They must act in the face of great uncertainty. At the same time the model does not completely bar the possibility that interrogational torture will be used by officials and later ratified by the public. It simply makes it extremely costly to resort to such drastic measures, limiting their use to exceptional exigencies. As Sanford Kadish notes, “Would not the burden on the official be so great that it would require circumstances of a perfectly extraordinary character to induce the individual to take the risk of acting? The answer is of course yes, that's the point.”
I support an absolute legal ban on torture while simultaneously suggesting that in catastrophic cases public officials may choose to act outside the legal order, at times even violate the otherwise entrenched absolute prohibition on torture.
Some may charge me with trying to have my cake and eat it too, that is, supporting an absolute legal ban on torture precisely on the ground that it will not function as absolute in real life. Perhaps this is true. Guido Calabresi notes that subterfuges often accompany tragic choices. “We look for solutions which seek to cover the difficulty and thereby permit us to assert that we are cleaving to both beliefs in conflict.” To be sure, my proposal attempts to cling to both sets of values involved in assessing torture in general, and preventive interrogational torture in particular. However, rather than cover up the difficulty I seek to expose it and ensure that it is dealt with in as transparent, open, and public manner as possible. This desire for visibility, accountability, openness, candor, and responsibility is shared by proponents of ex ante torture warrants and of ex post public ratification alike.
But is public and open debate about torture, in and of itself, desirable? Or is it better to treat the absolute ban on torture as axiomatic and avoid attempts to prove its desirability or usefulness? Does merely engaging in debate on torture reflect “loose professionalism”? …
… the alternative to no open debate over the use of torture (or, indeed, to discussion that merely replicates the mantra that torture is absolutely prohibited) is not the disappearance of the practice of torture. While we abhor the detailed medieval codes and procedures on torture, we also ought to recognize that the practice remains. By refusing to discuss torture, we do not make it go away; we drive it underground. Moreover, by refusing to acknowledge that the notion of torture is more complex than many supporters of the “torture-is-banned-and-that-is-all-there-is-to-it” approach would have us believe, we run the risk of having the general public perceive the legal system as either utopian or hypocritical. After all, most of us believe that most, if not all, government agents, when faced with a genuinely catastrophic case, are likely to resort to whatever means they can wield—including preventive interrogational torture—to overcome the particular grave danger that is involved. And I believe that most of us hope they will do so.
It's that last line which worries me.