At my personal blog, I’ve got a post up putting forward seven propositions that pretty much define my present thinking about torture and the prosecution thereof. Some may find it strange that nowhere in that list does a professed (if not yet professional) philosopher have anything at all to say about “ticking time-bomb” scenarios and the other kinds of hypotheticals that Conor, for instance, ably takes up here. But this is actually because, perhaps contrary to what Conor says in his follow-up post, I think that such abstract considerations pretty much are little more than a distraction from the really crucial issues.
The reason for this is simple: the fact that a given sort of behavior can reasonably be counted as legal or moral in one circumstance says nothing at all about whether it can be so counted in another. There are countless behaviors that share this characteristic: sexual intercourse, for instance, is obviously one, as are cursing and slapping and swearing and humiliating and waking people up in the middle of the night or even trying to scare them with dogs. And we all can see, I think, when it is that such behaviors are appropriate, and when it is that they are not; being able to make such distinctions is just what it is to be appropriately responsive to moral demands.
Given this recognition, the important discussion about torture – which is to say: the discussion about torture that we need to be having, as opposed to the one we’d be in a position to have if not for all the things that happened on our government’s watch – is a discussion about whether, given the circumstances that actually obtained, the things that agents of our government did to prisoners and detainees were warranted. Whether there are some other possible circumstances in which some of those behaviors might have been warranted or even morally required is an entirely separate question, and while it’s of some philosophical interest it clearly ought to be far less important to us than the question of whether what we did constituted torture; and as such, it’s generally quite hard to see the insistence on posing wild counterfactuals rather than dealing with real-life cases as anything but a ruse.
Again, that’s not to say that counterfactuals are never relevant to moral deliberation. (For a helpful account of why they sometimes are, see Bryan Caplan’s post here – though for a note on why they sometimes aren’t, see his post here, too.) But the problem is that when you’re faced with an actual situation that call for a moral evaluation, thinking instead about some alternative possible world is at best a luxury you can’t afford; in practice, it’s often like discussing the trolley problem when faced with a charge of vehicular manslaughter. The key is to get the actual circumstances right, and understand what they demanded, not to dream up some imaginary alternative in which the behaviors in question would arguably have been okay.
One more point: even when we are entitled to go in for thought-experiments, there’s every reason not to make too much of their conclusions. In the first place, our intuitions about what to do in far-away circumstances are often pretty corrupted; moreover, there’s a tendency in designing thought-experiments to idealize the imagined circumstances to a far greater degree than worldly situations can ever achieve. (The standard “ticking time-bomb” scenarios are cases in point.) Perhaps most crucially, an excessive focus on what to do in idealized situations can easily corrupt our judgments about what to do in ordinary ones, and there’s every reason to have our laws written in a way that doesn’t permit even the handful of exceptions that abstract reflection might suggest are appropriate. The decision to harm, shock, or terrify a person, like that to go to war, can never be a “slam dunk”; in the real world, it always needs to be made with deep trepidation and concern for the seriousness of what’s involved. If such a mindset had been in place in the wake of 9/11, no doubt many of the subsequent evils would likely have been avoided.