Critics of "torture" typically alleged that supporters of "torture" defend "torture" on utilitarian or consequentialist grounds. Let's briefly consider this argument for "torture":
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 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.
http://plato.stanford.edu/entries/torture/#CasStuTerTicBom
Seems to me that this is not an essentially utilitarian or consequentialist argument. The argument isn't based primarily on results or the end justifying the means. Rather, it draws two key distinctions:
i) It distinguishes between guilt and innocence. By his murderous intent, the terrorist has forfeited the prima facie right not to be harmed. Conversely, his targets are innocent civilians.
ii) It distinguishes between lesser and greater harm. Temporary harm and permanent harm. The degree of unjust harm inflicted on the innocent.
In sum, it frames the issue as a choice between temporarily harming a culpable party and permanently harming an innocent party–by failure to take the necessary means to protect the innocent party.
Now, a critic could still object to the argument on other grounds, but I don't see that the argument is reducible to consequentialism, utilitarianism, or the end-justifies-the-means. The innocent party has a right not to suffer harm at the hands of the guilty party. It's morally relevant who suffers the consequences. Moreover, the innocent party has the right not to suffer greater harm to protect the guilty party from suffering lesser harm. These distinctions respect intrinsic justice.
i) Does a terrorist have a right to commit mass murder against Americans?
ii) Assuming that it’s immoral to murder Americans, does a terrorist have a moral right to withhold information (e.g. time, place, operatives) about a plot to murder Americans?
If it’s wrong to murder Americans, then it’s wrong to conspire to murder Americans. And it’s wrong to withhold information regarding the murderous conspiracy. Wrong to withhold information which would help authorities thwart the plot.
iii) Do the authorities have a duty to protect Americans against mass murder?
iv) Do the authorities have right (and duty) to obtain information about an impending terrorist attack from a captured terrorist?
Assuming they have a duty to protect Americans, then isn’t (iv) part of their duty?
v) If it’s a choice between hurting (i.e. coercing) the terrorist to obtain actionable intel, or allowing the terrorist to hurt (i.e. murder) innocent Americans, where does our duty lie? Should we protect the terrorist or protect the innocent targets of the plot?
One the one hand you “traumatize” the terrorist. So maybe he has nightmares for the rest of his life. Big deal. Why should terrorism be a risk-free occupation?
On the other hand, you save the lives of, let’s say, dozens of innocent men, women, and children. Is the priority to protect the terrorist from harm or the innocent from harm?
vi) A captured terrorist is always at liberty to volunteer what he knows. Coercion is only applied if he refuses to divulge what he knows. Absent an adequate motivation, he may have no incentive to say anything at all.
A terrorist informant has information which we have a right to know. Since he won’t volunteer that information, we have a right to squeeze it out of him.
We shouldn’t employ gratuitously harsh methods to obtain the information. If we can coax the information out of him by kinder, gentler methods, fine. But if he will only divulge what he knows under duress, then we have a right to put him under duress.
It’s no different, in principle, than interrogating a murder suspect. Yes, he may lie to the homicide detectives. But if he gives them a false lead, and they follow up on the lead, they will find out that it’s a false lead. That he lied. They can then go back and question him again.
If, on the other hand, it’s true, then they will have ways of corroborating its veracity. In which case they will know something they didn’t otherwise know.
If a terrorist says something, there are ways to either verify or falsify his statement. But if he’s allowed to keep mum, you can never test it one way or the other.
The Geneva accords are predicated on reciprocity. The Geneva accords distinguish between lawful and unlawful combatants in order to reward those who abide by the laws of warfare while penalizing those who flout the laws of warfare. If such protections are extended to unlawful combatants, then that removes any incentive to ever abide by the laws of warfare.
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