Yoo and Waldron debate terror and torture

See this very interesting post at Opinio Juris on a debate between John Yoo and Jeremy Waldron on terror and torture. Here, at Opinio Juris.

I'm afraid I quite disagree with Professor Waldron that the question of the whether you would be willing to torture the person who knows where the ticking nuclear bomb is hidden is, in his words, "bad and corrupt." That's not an answer. It is a real question since September 11. However, he did answer it, and his answer is a morally defensible one - we must never torture, though the heavens fall, as Kant might say. It is also, in my estimation, quite the wrong answer. My own view is best expressed by Thomas Berger, in a passage I have quoted before, from the Lady of the Lake to the dying King Arthur: "Thine obligation was to maintain power in as decent a way as possible while yet being effective."

A nuclear bomb going off in Manhattan because we refused on principle to torture the person who knows where the bomb is located is not effective nor, come to that, decent.

UPDATE, May 7, 2005. Following up on a thoughtful anonymous comment, although without trying to be more than schematic. Here are four different situations where the morality it slightly different in each. (1) The guy who planted the bomb and knows where it is - torturing him in those circumstances is the clearest case, because of the element of culpability. (2) The guy who knows where the bomb is planted, although he didn't plant it himself - there is still an element of culpability here, not necessarily from being part of the terrorist group, but in refusing to share information that could cost a million lives. Torturing him is also not a problem. (3) The guy who knows where the bomb is planted, but won't tell you, because the terrorists have kidnapped his family and will kill them if he talks. (4) The guy who (some sci-fi story) has no connection to the terrorists, is wholly innocent, but his memories of what he saw the bad guys doing won't be triggered unless you torture him.

Cases (3) and (4) can justify torture, I think, but it has to be justified on either a double-effect basis (you are torturing him, yes, but especially in case (4), you are aiming at some other effect and would avoid the torture if you could) or else on simply a consequentialist basis - i.e., you are always entitled, and indeed obligated to torture anyone, even a small child, if it would prevent the deaths of a million people. I am skeptical of the use of the double effect doctrine here - it applies even in the case of (1) and (2), I suppose, and think that it is one of those situations where you simply think that consequences can become so overwhelming, so many dead, that it consequences overwhelm everything else.

What I do think has genuine real world application here - why I think Waldron is wrong to reject the question as corrupt and unreal - is that if we captured Osama, Zarqawi, several others, we would have an opportunity in real time to save many lives, now and into the future, and the element of their culpability opens the possibility to do things to them to obtain that information that one could not do to the person who might actually be the innocent sherpherd. I don't regard Waldron's view as off-the-wall, of course - I have great respect for its principledness - but I don't think it's right. And I note that neither of the two Democratic senators from New York, Chuck Schumer or Hillary Clinton, thinks it is right, either.