There's been a resumption in the discussions of torture with the Michael Mukasey attorney general hearings. I haven't had much chance to say anything about these issues, but I've been thinking that there are two questions people I've been hearing and reading have been sidestepping. Some of the questions are legal. There are international treaties that weigh in on the issue, and there are explicit laws and policies that may have a bearing. I'm not interested in those issues for this post, but I hope to come back to them later this week. For the moment, I want to offer some moral considerations apart from whether any law or treaty applies to any particular technique.
Here is a plausible moral view (which I've tried to motivate a little more in general here and here). There are lots of things that are generally immoral that in extreme circumstances might be morally justified or at least excused. This is almost uncontroversially true of killing. Hardly anyone will oppose killing in self-defense or defense of others. It's also not that controversial to say it's true of causing lesser degrees of pain for the sake of achieving some further goal (e.g. cutting off someone's arm to amputate it when their arm would otherwise cause them to die from gangrene). It might be true in cases of causing one person pain in order to prevent a great harm to many people, as happens with interrogation methods that cause some psychological discomfort but are not controversial.
Given all that, it's at least an option on the table to consider more extreme methods of interrogation as different only in degree and not in kind. It's a greater amount of discomfort, pain, and distress. So it should take a greater amount of seriousness in the situation for it to be morally allowable. But I don't see how it's going to follow automatically from the greater amount of discomfort, pain, and distress that we should have an absolute moral prohibition on it. Maybe some techniques are so awful that the moral seriousness of the situation needs to be so high that it's almost certainly never going to occur. But that's still not an absolute moral prohibition.
Notice that I haven't used the word 'torture' in any of that discussion. I've been using more precise terms that actually mean something. If this view is correct, and I haven't argued that it is but simply claimed that it should be on the table, then techniques like waterboarding may well be immoral in almost any case that someone might propose to use them but not necessarily immoral in every case.
Leaving aside any actual laws and policies, what does this mean for what the ideal law or policy should say? I'm not sure it follows that any particular law or policy is the right one, but it does suggest that there should be extremely strong safeguards against using such techniques except in very extreme circumstances, and it seems perfectly fine given such a view that there would nevertheless be some way such techniques could nevertheless be used in extremely rare, extremely serious situations. I have no idea how such a policy would work, but it seems to me that absolute prohibitions and blanket allowances would both fail to capture the correct moral view if what I've been outlining is correct.
Again, I haven't argued that this view is true, but it seems to me to be one of the views we should have on the table, and that means absolute prohibitions and blanket allowances should not be the only options on the table. Meanwhile, the opponents of waterboarding aren't allowing anything but a blanket prohibition to be on the table, and many of the supporters of extreme interrogation techniques have not shown much willingness to figure out how to have safeguards to keep these techniques rare. I think that's unfortunate.