Stephen Hoffman (University of Arizona – James E. Rogers College of Law) has posted Is Torture Justified in Terrorism Cases?: Comparing U.S. And European Views on SSRN. Here is the abstract:
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This essay discusses issues of torture and some of the philosophical underpinnings. First, I define torture as it is used in international and human rights law. Then, I discuss three primary theories of torture: deontology, consequentialism, and threshold deontology. After setting this groundwork, I introduce particular issues in terrorism cases such as the “ticking bomb” scenario, which is often used to argue that torture may be appropriate and possibly required when done to save many lives. This invariably must include a discussion of the necessity doctrine, the legal doctrine allowing an individual to take extraordinary — even illegal — measures when necessary to avoid greater harm. Then, I set forth arguments against torture, even in the case of the “ticking bomb” scenario. In conclusion, I argue that, even though international and human rights law explicitly forbid torture under any circumstances, there are instances where torture may be warranted and acceptable in terrorism cases.