 Consider the following case study:    Height of the antipodean summer, Mercury at the century-mark; the noonday sun softened the bitumen beneath the tyres of her little Hyundai sedan to the consistency of putty. Her three year old son, quiet at last, snuffled in his sleep on the back seat. He had a summer cold and wailed like a banshee in the supermarket, forcing her to cut short her shopping. Her car needed petrol. Her tot was asleep on the back seat. She poured twenty litres into the tank; thumbing notes from her purse, harried and distracted, her keys dangled from the ignition.  Whilst she was in the service station a man drove off in her car. Police wound back the service station’s closed-circuit TV camera, saw what appeared to be a heavy set Pacific Islander with a blonde-streaked Afro entering her car. “Don’t panic”, a police constable advised the mother, “as soon as he sees your little boy in the back he will abandon the car.” He did; police arrived at the railway station before the car thief did and arrested him after a struggle when he vaulted over the station barrier.  In the police truck on the way to the police station: “Where did you leave the Hyundai?” Denial instead of dissimulation: “It wasn’t me.” It was – property stolen from the car was found in his pockets. In the detectives’ office: “It’s been twenty minutes since you took the car – little tin box like that car – It will heat up like an oven under this sun. Another twenty minutes and the child’s dead or brain damaged. Where did you dump the car?” Again: “It wasn’t me.”  Appeals to decency, to reason, to self-interest: “It’s not too late; tell us where you left the car and you will only be charged with Take-and-Use. That’s just a six month extension of your recognizance.” Threats: “If the child dies I will charge you with Manslaughter!” Sneering, defiant and belligerent; he made no secret of his contempt for the police. Part-way through his umpteenth, “It wasn’t me”, a questioner clipped him across the ear as if he were a child, an insult calculated to bring the Islander to his feet to fight, there a body-punch elicited a roar of pain, but he fought back until he lapsed into semi-consciousness under a rain of blows. He quite enjoyed handing out a bit of biffo, but now, kneeling on hands and knees in his own urine, in pain he had never known, he finally realised the beating would go on until he told the police where he had abandoned the child and the car.  The police officers’ statements in the prosecution brief made no mention of the beating; the location of the stolen vehicle and the infant inside it was portrayed as having been volunteered by the defendant. The defendant’s counsel availed himself of this falsehood in his plea in mitigation. When found, the stolen child was dehydrated, too weak to cry; there were ice packs and dehydration in the casualty ward but no long-time prognosis on brain damage.  (Case Study provided by John Blackler, a former New South Wales police officer.)   In this case study torture of the car thief can be provided with a substantial moral justification, even if it does not convince everyone. Consider the following points: (1) The police reasonably believe that torturing the car thief will probably save an innocent life; (2) the police know that there is no other way to save the life; (3) the threat to life is more or less imminent; (4) the baby is innocent; (5) the car thief is known not to be an innocent – his action is known to have caused the threat to the baby, and he is refusing to allow the baby’s life to be saved.  The classic, indeed cliché, example used to justify torture is that of the so-called ‘ticking  bomb’.[13]  (See Bufacchi &amp; Arrigo 2006, Kleinig 2006, Hill 2007, Kaufman 2008, Segev 2008, Wisnewski 2009 and Steinhoff 2013.) Consider the following case. 3.2 Case Study – The Terrorist and the Ticking Bomb  Consider the following case study:   A terrorist group has planted a small nuclear device with a timing mechanism in London and it is about to go off. If it does it will kill thousands and make a large part of the city uninhabitable for decades. One of the terrorists has been captured by the police, and if he can be made to disclose the location of the device then the police can probably disarm it and thereby save the lives of thousands. The police know the terrorist in question. They know he has orchestrated terrorist attacks, albeit non-nuclear ones, in the past. Moreover, on the basis of intercepted mobile phone calls and e-mails the police know that this attack is under way in some location in London and that he is the leader of the group. Unfortunately, the terrorist is refusing to talk and time is slipping away. However, the police know that there is a reasonable chance that he will talk, if tortured. Moreover, all their other sources of information have dried up. Furthermore, there is no other way to avoid catastrophe; evacuation of the city, for example, cannot be undertaken in the limited time available. Torture is not normally used by the police, and indeed it is unlawful to use it.   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 the institutional environment described, torture is both unlawful and highly unusual. Accordingly the police, if it is discovered that they have tortured the terrorist, would be tried for a serious crime and, if found guilty, sentenced. We will return to this issue in the following section. Here simply note that the bare illegality of their act of torture does not render it morally impermissible, given it was otherwise morally permissible. Here it is the bare fact that it is illegal that is in question. So the relevant moral considerations comprise whatever moral weight attaches to compliance with the law just for the sake of compliance with the law, as distinct from compliance for the sake of the public benefits the law brings or compliance because of the moral weight that attaches to the moral principle that a particular law might embody. But even if it is held that compliance with the law for its own sake has some moral weight – and arguably it has none – it does not have sufficient moral weight to make a decisive difference in this kind of scenario. In short, if torturing the terrorist is morally permissible absent questions of legality, the bare fact of torture being illegal does not render it morally impermissible.  Note also that since the terrorist is, when being tortured, still in the process of attempting to complete his (joint) action of murdering thousands of Londoners, and murdering also the police about to torture him, the post factum legal defence of necessity may well be available to the police should they subsequently be tried for  torture.[15]  Some commentators on scenarios of this kind are reluctant to concede that the police are morally entitled – let alone morally obliged – to torture the offender. How do these commentators justify their position?  Someone might claim that torture is an absolute moral wrong (Matthews 2008; Brecher 2008). (For criticisms of these authors see especially Steinhoff 2013 and Allhoff 2012.) On this view there simply are no real or imaginable circumstances in which torture could be morally justified.  This is a hard view to sustain, not least because we have already seen that being tortured is not necessarily worse than being killed, and torturing someone not necessarily morally worse than killing him. Naturally, someone might hold that killing is an absolute moral wrong, i.e., killing anyone – no matter how guilty – is never morally justified. This view is consistent with holding that torture is an absolute moral wrong, i.e. torturing anyone – no matter how guilty – is never morally justified. However, the price of consistency is very high. The view that killing is an absolute moral wrong is a very implausible one. It would rule out, for example, killing in self-defence. Let us, therefore, set it aside and continue with the view that torture, but not killing, is an absolute moral wrong.  For those who hold that killing is not an absolute moral wrong, it is very difficult to see how torture could be an absolute moral wrong, given that killing is sometimes morally worse than torture. 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.  In conclusion, the view that it is, all things considered, morally wrong to torture the terrorist in the scenario outlined faces very serious objections; and it is difficult to see how these objections can be met. It is plausible, therefore, that there are some imaginable circumstances in which it is morally permissible to torture someone.  Let us now turn to the other argument of those opposing the moral permissibility of torture mentioned above. This is not the argument that torture is an absolute moral wrong but rather that, as Michael Davis puts it, “For all practical purposes – and so, for moral agents like us – torture is absolutely morally wrong” (2005: 170). The basic idea is that while torture is not an absolute moral wrong in the sense that the evil involved in performing any act of torture is so great as to override any other conceivable set of moral considerations, nevertheless, there are no moral considerations that in the real world have overridden, or ever will override, the moral injunction against torture; the principle of refraining from torture has always trumped, and will always trump, other moral imperatives. Proponents of this view can happily accept that the offenders in putative examples should be tortured, while simultaneously claiming that the scenarios in these examples are entirely fanciful ones that have never been, and will never be, realised in the real world.  It is important to stress here that the kind of scenario under discussion remains that of the one-off case of torture in an emergency situation; what is not under consideration in this section is legalised, or otherwise institutionalised, torture.  The central claim of the proponents of “practical moral absolutes” seems to be an empirical one; ticking bomb scenarios, such as our above-described terrorist case – and other relevant one-off emergencies such as our above-described police beating case in which torture seems to be justified – have not, and will not, happen.  The first point to be made is simply to reiterate that some of these scenarios – such as police officers beating up kidnappers and other offenders to rescue children – are not only realistic, they are real; they have actually happened. What of the ticking bomb scenario in particular? As stated above, it is by no means self-evident that this kind of scenario is entirely fanciful. Here it can be conceded that there is no guarantee that torture would succeed in saving the lives of (to revert to our specific ticking bomb scenario) thousands of Londoners. This is because the person tortured might not talk or he might talk too late or he might provide false or misleading information. However, it should be noted that the police know that the offender has committed the offence and is in a position to provide the needed information, i.e. the police know that the offender is guilty. Moreover, the information being sought is checkable; if the terrorist gives the correct location of the bomb then the police will find it – if he does not, then they will not find it. Further, the police have no alternative methods by which to avoid the death of the innocent. Given what is at stake and given the fact that the police know the offenders are guilty, the police are, it seems, justified in the use of torture, notwithstanding a degree of uncertainty in relation to the likelihood of success. (See Thiessen (2010) for arguments that so-called enhanced interrogation techniques do in fact work.)  The second point is that, practicalities notwithstanding, the proponents of “practical moral absolutes” still need to offer a principled account of the moral limits to torture – an account of torture, so to speak, in the abstract. And these accounts could differ from one advocate of practical moral absolutes to another. For example, one advocate might accept that it would be morally permissible to torture the terrorist to save the lives of ten innocent people threatened by a non-nuclear explosive device, whereas another advocate might reject this on the grounds that ten lives are too few. What the two advocates would have in common is the belief that even the revised ticking-bomb scenario involving only the death of ten innocent people is, nevertheless, a fanciful scenario that has not occurred, and will not ever occur. In short, different advocates of practical absolutism can ascribe different moral weight to different moral considerations, and we need to know what these weightings are for any given advocate. For otherwise it is extremely difficult to assess the validity or plausibility of the associated general empirical claim that in practice no act of torture has ever been, nor ever will be, morally justified. Roughly speaking, the greater the moral weight that is given by the practical moral absolutist to refraining from torture – this moral weight considered both in itself and relative to other moral considerations – the more plausible the associated general empirical claim becomes. On the other hand, the greater the moral weight that is given to the principle of refraining from torture, the less plausible the narrowly moral claims of the practical absolutist become – indeed, at the limit the practical absolutist becomes a moral absolutist tout court.  At any rate, the general point to be made here is that the practical moral absolutist owes us a principled account of the moral weight to be attached to refraining from torture relative to other moral considerations. For without it we are unable to adequately assess whether or not putative counter-examples to this position are really counter-examples or not. It is not good enough for the practical moral absolutist just to give the thumbs down to any putative counter-example that is offered.  The third general point against the practical moral absolutist is to reiterate that it has already been argued that torture is not the morally worst act that anyone could, or indeed has or will, perform. If this is correct, then it is plausible that there will be at least some scenarios in which one will be forced to choose between two evils, the lesser one of which is torture. Indeed, the above-described police beating scenario (certainly) and the ticking bomb scenario (possibly) are cases in point. 4. The Moral Justification for Legalised and Institutionalised Torture  We have seen that there are likely to exist, in the real world, one-off emergency situations in which arguably torture is, all things considered, the morally best action to perform. It may seem to follow that institutional arrangements should be in place to facilitate torture in such situations. However, it is perfectly consistent to concede that torture might be morally justifiable in certain one-off emergency situations and yet oppose any legalization or institutionalization of torture.  Luban (2005) and (2014), and Waldron (2005), in particular, have drawn attention to the moral inconsistency and inherent danger in liberal democratic states legalising and institutionalising torture, a practice that strikes at the very heart of the fundamental liberal value of individual autonomy. They have also detailed the tendency for a torture culture to develop in organisations in which torture is legalised or tolerated, a culture in which the excesses of torturing the innocent and the like take place, as in the US army detention centres in Abu Ghraib in Iraq and Guantanamo Bay in Cuba, and in the Israeli secret service (General Security Service). Nevertheless, it is useful to sketch a general argument against the legalisation and institutionalisation of torture. The argument is consistent with, indeed at some points it is more or less the same as, the arguments of Luban and Waldron. However, the argument has some novel elements, not the least of which is the claim that the view that torture is morally justified in some extreme emergencies is compatible with the view that torture ought not to be legalised and institutionalised.  Most of the theorists who oppose the legalisation and institutionalisation of torture also (at least implicitly) reject the possibility, let alone actuality, of one-off emergencies in which torture is morally justified. The argument has been put that there are, or could well be, such one-off extreme emergencies in which torture is morally justified. So the first task here is to demonstrate that these two claims are not inconsistent. Specifically, it needs to be shown that it does not follow from the fact that torture is in some extreme emergencies morally justified, that torture ought to be legalised, or otherwise institutionalised. So the claim is that it is just a mistake to assume that what morality requires or permits in a given situation must be identical with what the law requires or permits in that situation. This calls for some explanation.  The law in particular, and social institutions more generally, are blunt instruments. They are designed to deal with recurring situations confronted by numerous institutional actors over relatively long periods of time. Laws abstract away from differences between situations across space and time, and differences between institutional actors across space and time. The law, therefore, consists of a set of generalisations to which the particular situation must be made to fit. Hence, if you exceed the speed limit you are liable for a fine, even though you were only 10 kph above the speed limit, you have a superior car, you are a superior driver, there was no other traffic on the road, the road conditions were perfect, and therefore the chances of you having an accident were actually less than would be the case for most other people most of the time driving at or under the speed  limit.[16]  By contrast with the law, morality is a sharp instrument. Morality can be, and typically ought to be, made to apply to a given situation in all its particularity. (This is, of course, not to say that there are not recurring moral situations in respect of which the same moral judgment should be made, nor is it to say that morality does not need to help itself to generalisations.) Accordingly, what might be, all things considered, the morally best action for an agent to perform in some one-off, i.e. non-recurring, situation might not be an action that should be made lawful. Consider the real-life example of the five sailors on a raft in the middle of the ocean and without food. Four of them decide to eat the fifth – the cabin boy – in order to  survive.[17]  This is a case of both murder and cannibalism. Was it morally permissible to kill and eat the boy, given the alternative was the death of all five sailors? Clearly it was not pro tanto morally permissible, especially given the cabin boy was entirely innocent; but perhaps it was morally permissible all things considered. And even if it was not morally permissible all things considered, nevertheless, arguably it was morally excusable, and indeed the sailors, although convicted of murder and cannibalism, had their sentence commuted in recognition of this. But there was no suggestion that the laws against murder and cannibalism admit of an exception in such an extreme case; the sailors were convicted and sentenced for murder and cannibalism. Again, consider an exceptionless law against desertion from the battlefield in time of war. Perhaps a soldier is morally justified in deserting his fellow soldiers, given that he learns of the more morally pressing need for him to care for his wife who has contracted some life-threatening disease back home. However, the law against desertion will not, and should not, be changed to allow desertion in such cases.  Some theorists (Allhoff 2012) have invoked the legal principle of necessity in order to establish that torture in some extreme circumstances is or should be legally permissible (Gaeta 2004; Hunsinger 2008). However, the legal principle of necessity is inherently (and intentionally) vague. It typically applies to situations in which someone has infringed a law, but done so to avert a greater evil which is otherwise unavoidable. Here the notion of greater evil is radically underspecified and, therefore, in need of interpretation by the courts in any given case. Moreover, the application of the principle of legal necessity in cases in which it is state operatives who invoke it, such as in cases of torture by the members of security agencies, is fraught with danger. For the protection of the rights of citizens not to be tortured is likely to be significantly reduced if there is a legal justification for torture available to members of security agencies. Given the inherent vagueness of the notion of lesser evil, there is the potential in their adjudications for judges to favour the members of security agencies at the expense of ordinary citizens.  We will shortly turn to arguments to the effect that while there may well be morally justifiable one-off cases of torturing the guilty, it does not follow that torture should ever be legalised, even in such cases. However, it has been suggested by Steinhoff (2010) and (2013) that torturing the guilty can in many cases be understood as torturing the guilty in self-defence. If so, presumably torturing the guilty could reasonably be legalised on the grounds that torturing in self-defence is analogous to killing in self-defence, and self-defence is an explicit legal justification for killing in most jurisdictions. Steinhoff has also suggested (2006, 2013) that legalisation would not necessarily lead to institutionalisation in the sense of the creation of the institutional role of a torturer, the routinisation and bureaucratisation of the process of torture, and so on.  Torturing the guilty in self-defence is arguably something of a misnomer. Firstly, it is not really self defence per se, but rather the saving of the lives of others. After all, generally the would-be torturer’s life is not at risk, and even if it is at risk in a particular location, as in some terrorist bombing scenarios, then presumably the risk can be averted by the torturer simply abandoning his immobilised victim and fleeing the area. Note that on many accounts self defence is a more readily acceptable moral justification or excuse for killing an attacker than is defending the lives of others (at least, others who are not members of one’s family or close friends). Secondly, torturing in order to save life is inherently unreliable by comparison with killing in self-defence. This is because killing an attacker is directly connected to the desired outcome of removing the threat; indeed, to kill the attacker is to remove the threat. This is not so with torture. Rather torturing is one action and removing the threat (e.g., disarming the ticking bomb) is another act necessarily at some causal remove from the first action. Moreover, the putative (necessarily indirect) causal connections between the two actions may well not obtain. Thirdly, torturing the guilty to save innocent lives does not typically involve an imminent threat, as typically must be the case in instances of lawful self-defence in well-ordered jurisdictions. For the threat posed by (say) a terrorist-bomber is either imminent, as in the case of a suicide-bomber, in which case there is no time to torture anyone; or the threat is not imminent in which case there is time to pursue other options, such as intercepting the communications of other members of the terrorist cell and, thereby, locating the bomb. Again, consider typical kidnapping cases. Either the kidnapper is not in custody in which case he or she cannot be tortured; or the kidnapper is in custody in which case the threat to the kidnapped child from the kidnapper in custody is not imminent (the child is either dead or is alive and no longer under threat from the kidnapper in custody). Naturally, as we saw in the last section, there may well be a very small number of exceptional cases in which the threat is more or less imminent and torture is, nevertheless, a realistic option for removing the threat (and, indeed, the only option). Accordingly, this small number of exceptional cases might be analogous to killing in self-defence. Moreover, in some torturing the guilty scenarios the all things considered morally best option might be to torture the guilty party; indeed the general argument for the latter proposition was outlined in the last section. However, this does not demonstrate that justified torturing of the guilty to save the innocent they threaten is essentially a species of justified self-defence and that, therefore, it ought to be legalised.  It is consistent with the rejection of explicit legalisation of the torturing of the guilty that, as noted above, there be some form of legal redress in the very small number of exceptional cases of torturing the guilty in which the threat to the innocent is imminent (and torture is morally justifiable all things considered). These forms of legal redress for the torturer might include the existence of mitigating circumstances or the application of the legal principle of necessity – since the cases in question involve a genuinely dilemmatic situation in which the least harmful of the available options was chosen and chosen to the advantage of the innocent rather than the guilty.  The upshot of this discussion is that torturing the guilty to save the lives of the innocent is not analogous to killing in self-defence. Specifically, the legalisation of torturing the guilty faces the problem of imminence; unlike killing in self-defence it almost never involves an imminent threat. Accordingly, the legalisation of torturing the guilty is likely to be regarded as extremely problematic, since presumably legalisation is likely to result in institutionalisation. Consider in this connection police killing in defence of the lives of innocent citizens. This involves the creation of the institutional role of police sniper with all its attendant training, development and implementation of procedures (including the requirement that the threat be imminent before shots are fired) and, more generally, bureaucratisation. This is, of course, not to say that (as argued above) certain one-off cases of torturing the guilty might not be both morally justifiable and legally excusable (or otherwise be able to avail themselves of mitigating circumstances).   As already noted and contrary to the above-mentioned presumption, Steinhoff insists that legalization does not in fact necessarily lead to institutionalization. Specifically, he argues that the legalization of killing in self-defence has not led to its institutionalization, and he also claims (as we have seen) that torturing in self-defence is akin to killing in self-defence. As we have seen, the proposition that torturing the guilty to save lives is analogous to killing in self-defence is open to question and there is surely at least a presumption that legalisation will lead to institutionalisation. However, there is a further more specific point to be made here in relation to legalisation and institutionalisation. It is true that individualistic killing in self-defence on the part of private citizens has not led to institutionalization, but this is because it is an individual, non-institutional activity which is subject to stringent institutional accountability mechanisms (at least in well-ordered liberal democratic states). But it is extremely doubtful that an individual citizen is ever going to be in a situation where he has to defend his life by torturing his attacker. What we are talking about in this debate is the killing or torturing by institutional actors, e.g., police, of persons who are attacking third parties (whether by killing, kidnapping etc.); the third parties in question are, typically, members of the community. As noted above, the legalized killing by police of third parties has been institutionalized (police snipers). So evidently killing in self-defence does not constitute a relevant case in which there is legalization but not institutionalization.  Whether or not torture is likely to be institutionalised once legalised, or is even likely to be institutionalised if not actively resisted on an ongoing basis, is partly a matter of the the motivational drivers in play. And unfortunately, even in liberal democracies, when the threat to the community is regarded as substantial, institutional actors (such as police and military personnel) have been willing to engage in routinised extra-judicial killing (India, today) and more than willing to engage in routinised torture (use of the third degree by police agencies world-wide). In doing so, they have typically appealed to a self-defence moral justification (‘We had to torture/kill in order to save lives’). Moreover, in the case of the extra-judicial killings they have typically helped themselves to and often been aided by the legal justification of self-defence – ‘the Naxalites (in India) shot at us first and we fired back in self-defence’ (albeit what has also been revealed over time is a culture of ‘shoot first and ask questions later’). Torture is much more prevalent than killing in part because (as Steinhoff argues) torture is rightly regarded as not necessarily as bad as killing (criminals tortured by police are typically able to carry on with their lives, even if in prison) and perhaps also in part because torture is less susceptible to the available accountability measures (you cannot hide corpses, at least in liberal democracies). In short, there is good reason to believe that legalizing torture in contexts in which there is a substantial threat to the community will lead to its institutionalization.  It has been noted on a number of occasions that the law and morality can and do come apart. Moreover, it is plausible that sometimes they ought to come apart. A further point to be elaborated here pertains to the nature of the sub-institution of torture within the larger military, police, and correctional institutions. There is a need to begin with a few preliminary remarks about social  institutions.[18]  Social institutions, including legal institutions and military, police, and correctional organisations, have both a massive collective inertia and a massive collective momentum by virtue of the participation in them of many agents over a long time who: (a) pursue the same goals; (b) occupy the same roles and, therefore, perform the same tasks and follow the same rules and procedures, and; (c) share the same culture. Accordingly, social institutions and their component organisations are like very large ocean liners that cannot slow down, speed up, or change direction very easily. It follows that very careful thought needs to be given to the establishment of any additional structure of roles and associated practices that is to be woven into the fabric of the institution. For such an additional (embodied) role structure, once it becomes, so to speak, an integrated working part of the larger institution, is likely to be extremely difficult to remove; it is now a beneficiary of the inertia of the institution. Moreover such an additional, but now integrated, role structure participates in, and influences the direction of, the institution; it is now a contributing element to the momentum of the institution.  So what can be said of the likely institutional fit between military, police, and correctional institutions on the one hand, and the sub-institution of torture on the other? The role structure of this sub-institution consists of torturers, torturer trainers, medical personnel who assist torturers, and the like. The core practice of torture has been described in an earlier section.  The practice of torture is endemic in many, perhaps most, military, police, and correctional institutions in the world today, including democracies such as India. It is only in recent times and with great difficulty that torture in Australian prisons and police services, for example, has been largely eliminated, or at least very significantly reduced. The Australian, British, American, and like cases are important not only because they illustrate that torture can be endemic to liberal democratic institutions, but also because they demonstrate that liberal democratic institutions are able – given the political will, suitable re-education and training, stringent accountability mechanisms, etc. – to successfully combat a culture of torture.  Let us look at some of the evidence from the past. Consider police organisations in liberal democracies such as the USA. The influential Report on Lawlessness in Law Enforcement from the National Commission on Law Observance and Enforcement, also know as the Wickersham Commission, in 1931 found that the use of the third degree was widespread throughout police organisations in the USA (National Commission on Law Observance and Enforcement 1931, 4). More recently, we have the Rampart Reports documenting extensive police brutality – including extra-judicial killings (Parks 2000, 87–109; Rampart Independent Review Panel 2000, 11–14)  – and, in the wake of the Rodney King beating, the report of the “Christopher Commission” into the Los Angeles Police Department which found that a significant number of LAPD officers “repetitively use excessive force against the public and persistently ignore the written guidelines of the Department regarding force” (Independent Commission on the Los Angeles Police Department 1991, 9–12). In India – another liberal democratic state, albeit one at an earlier stage of economic development – police brutality is institutionalised. According to a recent Human Rights Watch Report (Human Rights Watch 2009: 14), “police violence and misconduct are … widespread and rooted in institutional practice”. Arvind Verma, an authority on policing in India, states that “Misuse of force, false-encounter killings (execution by police) and routine use of torture in extorting confessions are common with the police departments” (Verma 2011: 5).  Now consider prisons in liberal democracies. In the USA in the past widespread beatings and torture of prisoners (e.g., use of electrodes on prisoners’ private parts) has been documented in multiple jurisdictions, including Arkansas, Louisiana, Mississippi, Virginia and Florida. See, for example, Murton and Hyams’ classic work, Inside Prison, USA (Murton and Hyams 1969). In Australia there was the Nagle Royal Commission into New South Wales Prisons. Nagle reported systematic bashings in NSW prisons. He said of Grafton Gaol, in particular, that it had a “regime of terror”, “…brutal, savage and sometimes sadistic” (Nagle 1978: 108). He concluded thus: “It is the view of the Commission that every prison officer who served at Grafton during the time it was used as a gaol for intractables must have known of its brutal regime. The majority of them, if not all, would have taken part in the illegal assaults on prisoners” (Nagle 1978: 119).  When it comes to authoritarian regimes matters are, of course, much worse. Let us set aside the infamous Soviet Gulags under Stalin and also Hitler’s concentration camps, and rather consider some more recent examples. The South African Truth and Reconciliation Commission stated that under the apartheid regime, “torture was used systematically by the Security Branch, both as a means of obtaining information and of terrorising detainees and activists. Torture was not confined to particular police stations, particular regions or particular individual police officers” (TRC 1998: 187). In Chile the National Commission on Truth and Reconciliation (NCTR 1993: 1122) detailed over 2000 victims of human rights violations by the security forces of the Pinochet regime of which victims approximately half were killed (hundreds tortured to death) and the remaining half disappeared after arrest. According to Juan Mendez (a UN Special Advisor who was himself tortured during the Argentinean military dictatorship): “Torture became systematic and pervasive during the military dictatorships of the 1970s and 1980s, but it would be a mistake to trace its origins only as far as this dark era. In fact, torture was used by dictatorial as well as elected but authoritarian governments throughout the twentieth century” (Mendez 2005: 56).  In the light of the evidence it would be a massive understatement to say that historically the sub-institution of torture – whether in a lawful or unlawful form – has been no stranger to military, police, and correctional institutions. Further, there is now a great deal of empirical evidence that in institutional environments in which torture is routinely practised it has a massive impact on other practices and on moral attitudes. For example, in police organisations in which torture is routinely used the quality of investigations and, in particular, of interviewing of suspects, tends to be low. Careful, logically based, questioning on the basis of the available evidence is replaced by beating up suspects. Thus lower echelon police investigators in India often have little or no training in best practice interviewing and (as noted above) they routinely use the third degree. Again, Baldwin’s findings based on hundreds of taped interviews indicate that the interviewing skills of UK police during the period of the infamous police use of the third degree against the Birmingham Six, Guildford Four and Maguire Seven would have been quite poor (Baldwin 1993). Police in organisations in which offenders are routinely tortured do not, unsurprisingly, tend to develop respect for the moral rights of offenders, suspects, or even witnesses. This is entirely consistent with the excesses detailed by Luban and Waldron in the US military detention centres in Iraq and elsewhere, e.g., the Abu Ghraib scandal, and in the case of the interrogations of suspected terrorists by the Israeli secret service. Indeed, these excesses are to be expected.  And there is this further point. The prevalence of torture in numerous military, police, and correctional institutions throughout the world has taken place notwithstanding that for the most part it has been both unlawful and opposed by the citizenry.  It is to be concluded from all this that for the most part military, police, and correctional institutions are qua institutions very receptive to the practice of torture – even when it is unlawful – and that these institutions qua institutions would relatively easily incorporate the legalised sub-institution of torture; accordingly, it is very easy to legalise torture and thereby grow and develop a torture culture in military, police and correctional institutions. This does not mean that there are not important differences between, say, police services in authoritarian states and those in contemporary (though not necessarily historical) liberal democratic states; obviously there are. Nor does it mean that most, or even the majority, of the individuals who occupy roles in these institutions, whether in liberal democracies or elsewhere, are necessarily receptive qua individuals to engaging in the practice of torture; most of them might not be. However, most of them would not be torturing people; that would be done by a distinct minority, as in fact has usually been the case even in institutions in which torture is unlawful and endemic. The question is whether or not as individuals they would initially tolerate, and finally accept, the practice of torture, if it were legally and institutionally established; the suggestion is that the historical and comparative evidence is that they would, including in liberal democracies.  A additional conclusion to be drawn is that should the legalised sub-institution of torture be integrated into any of these institutions it would be very difficult to remove and would, even in liberal democracies, have a major impact on the direction, culture, and practices of these institutions. Again, this is what the historical and comparative empirical evidence tells, notwithstanding the initial and even continuing aversion of many, perhaps most, of the individuals in these institutions to torture as such. Consider the Israeli case. Limited forms of torture were legal in Israel prior to 1999, but illegal post 1999. However, evidently torture has by no means been eradicated post 1999. According to the Public Committee Against Torture in Israel (PCATI), reporting on the period between September 2001 and April 2003: “The affidavits and testimonies taken by attorneys and fieldworkers… support the conclusions …violence, painful tying, humiliations and many other forms of ill-treatment, including detention under inhuman conditions, are a matter of course….The bodies which are supposed to keep the GSS [General Security Service] under scrutiny and ensure that interrogations are conducted lawfully act, instead, as rubberstamps for decisions by the GSS…The State Prosecutor’s Office transfers the interrogees’ complaints to a GSS agent for investigation and it is little wonder that it has not found in even a single case that GSS agents tortured a Palestinian ‘unnecessarily’” (PCATI 2003).  The deeper explanation for the prevalence of torture cultures and the difficulty of eradicating institutionalised torture is no doubt very complex, but presumably it consists in part in the following elements: (1) moral docility, as opposed to physical docility, is a feature of individuals housed in, and materially dependent upon, large, hierarchical, bureaucratic organisations with strong, relatively homogenous cultures; (2) the roles of soldier, police officer, and prison warder necessarily involve the routine use of coercive, and even deadly, force against dangerous criminals, enemy soldiers, or terrorists, and therefore undertaking these roles inevitably results in a degree of moral de-sensitisation and a sense of moral ambiguity when it comes to torturing criminals and/or terrorists; (3) torture is an exercise of enormous power, and power is deeply seductive to many people (and much less dangerous than shooting at armed enemy combatants or trying to arrest or subdue violent criminals).  Armed with these observations on the difference between law and morality, and on the nature of the sub-institution of torture in military, police, and correctional institutions, what now can be said on the question as to whether or not to legalise and institutionalise torture in contemporary well-ordered liberal democratic states undergoing a lengthy period of attacks from terrorist organisations?  As we saw above, torture is a terrorist tactic. Indeed, arguably it is the terrorist tactic par excellence. Detonating bombs that kill the innocent has come to be regarded as the quintessential terrorist tactic. But this is presumably because terrorism has implausibly come to be identified only with non-state terrorism. At any rate, the point to be made here is that torture is a terrorist tactic, and for a liberal democracy to legalise and institutionalise it, i.e. weave the practice of torture into the very fabric of liberal democratic institutions, would be both an inherent contradiction – torture being an extreme assault on individual autonomy – and, given what we know about the practice of torture in military, police, and correctional institutions, highly damaging to those liberal democratic institutions. It would be equivalent to a liberal democracy legalising and institutionalising slavery on the grounds, say, of economic necessity. Legalised and institutionalised slavery is inconsistent with liberal democracy, as is legalised and institutionalised torture. So if legalised and institutionalised slavery and/or legalised and institutionalised torture are necessary because morally required, then liberal democracy is not possible in anything other than an attenuated form. But of course neither legalised/institutionalised slavery nor legalised/institutionalised torture is morally required, quite the contrary. At best, torture is morally justified in some one-off emergencies – just as murder and cannibalism might be morally excusable in a one-off emergency on the high seas, or desertion from the field of battle might be morally justifiable given a one-off emergency back home – but nothing follows as far as the legalisation/institutionalisation of torture is concerned.  A final point here concerns the proposition that, absent legalised/institutional torture, unlawful endemic torture in the security agencies of contemporary liberal democracies confronting terrorism is inevitable. The implication here is that unless legalised, torture will become endemic in these agencies. It has already been argued that legalisation/institutionalisation of torture would be profoundly damaging to liberal democratic institutions. Assume this is correct; it does not follow from this that a torture culture will not come to exist in those agencies in the context of torture being unlawful. Nor does it follow that an unlawful torture culture, indeed an unlawful sub-institution of torture, is inevitable. Here there is a tendency to use the kind of argument that is plausible in relation to, say, the prohibition of alcohol. It is better to legalise alcohol, because then it can be contained and controlled. This form of argument used in relation to torture is spurious. Consuming alcohol to excess is not morally equivalent to torture, and we do not legalise the use of alcohol in emergency situations only. Legalising the use of torture in extreme emergencies would be much more akin to legalising perjury in extreme situations. As with torture – and unlike alcohol – perjury is only morally justified in some extreme one-off  situations.[19]  However, no-one is seriously considering legalising perjury in one-off extreme situations (at least to my knowledge), and with good reason – to do so would strike at the very heart of the legal system.  The fact is that the recent history of police, military, and other organisations in liberal democracies has demonstrated that torture cultures and sub-institutions of torture can be more or less eliminated, albeit with considerable difficulty. The elimination of torture cultures and sub-institutions can only be achieved if torture is unlawful, the community and the political and organisational leadership are strongly opposed to it, police officers and other relevant institutional actors are appropriately educated and trained, and stringent accountability mechanisms, e.g., video-recording of interviews, close-circuit TV cameras in cells, external oversight bodies, are put in place. It is surely obvious that to re-introduce and indeed protect the practice of torture, by legalising and institutionalising it, would be to catapult the security agencies of liberal democracies back into the dark ages from whence they came.  The discussion has focussed on the legalisation and institutionalisation of torture, where the practice of torture is understood in general terms; it ought to be now obvious why torture should not be legalised. However, some commentators, notably Alan Dershowitz, have argued that legalised torture could be justified, if the torture in question was restricted to extreme emergency situations and subjected to appropriate accountability mechanisms. Specifically, he has argued for torture warrants of the kind introduced for a time in Israel (Dershowitz 2003, 2004; and Wisnewski 2008).  The notion of torture warrants is supposedly analogous to surveillance and telephone interception warrants issued to police by a magistrate or other judicial officer. The idea is that privacy is a fundamental right but it can be infringed under certain conditions, such as reasonable suspicion that the person whose privacy right is to be infringed is engaged in serious criminal activity, there is no alternative way to acquire the necessary information to convict him/her, and so on. In this kind of set-up the magistrate, not the police, makes the decision as to whether or not these conditions obtain. Consequently, the infringements of privacy rights are restricted, and subject to stringent accountability mechanisms.  However, morally speaking, torture warrants are entirely different from telephone interception or surveillance warrants. First, torture is a far greater evil than the infringement of privacy. For one thing, having one’s phone tapped or movements filmed is inherently much less distressing, harmful and morally repugnant than the physical suffering and loss of autonomy involved in being strapped to a chair and, say, having someone drill into an unanesthetised tooth. On the spectrum of evils, torture is closer to murder/killing than it is to the infringement of privacy. For another thing, torture is a far more dangerous practice than infringing privacy. For the degree of the infringement of privacy can be minimised, e.g., the information gained can relatively easily be kept strictly confidential by the police; moreover, there is no inherent reason for the police to illicitly widen a given infringement of privacy by breaching confidentiality. But in practice torture cannot be restricted likewise. The methods of torture and the process of torture exist on a continuum, and there is often an inherent reason to ‘push the envelope’ and inflict ever more severe forms of physical suffering on victims; so-called ‘torture lite’ becomes full-blooded, no holds-barred torture. One of the consequences of this continuum of torture is the ever-present possibility that the victims of torture will not simply be tortured, but rather be murdered; and in point of fact numerous people have died in the course of being tortured.  Second, as has already been argued, there is an inherent institutional receptivity of military, police, and correctional institutions to the practice of torture; a receptivity which is such that torture cultures will grow and flourish, notwithstanding Dershowitz’s proposal that only tightly controlled and highly restricted forms of torture are to be legally admissible. This institutional receptivity has the consequence that inevitably large numbers of innocent people will be tortured – as has happened in Israel (see PCATI 2003). Indeed, even under tightly controlled and highly restricted forms of torture some innocent persons will inevitably be tortured – just as the privacy of innocent people is infringed under the existing telephone and surveillance warrant systems. Arguably, the infringement of the privacy of some – in fact, many – innocent persons is a price that we ought to be willing to pay for the sake of preventing serious crimes. However, it would be preposterous to argue that (inadvertently?) torturing numerous innocent people is a reasonable price to pay in return for the information provided by those of the tortured who are in fact guilty.  Third, the information gained by wire-tapping or surveillance has in general far greater utility than that gained by means of the practice of torture – certainly by the tightly controlled and highly restricted forms of torture of the kind envisaged by Dershowitz. Indeed, it is by no means clear that the utility – in terms of saving lives (and leaving aside the costs) – of the system of legalised torture warrants will be very high. (In Israel, to repeat the example, it does not appear to have been particularly high.) This is so for two reasons. One reason is that torture victims typically tell the torturer whatever they think he wants to hear, e.g., they are happy to implicate others who are in fact innocent in order to bring an end to their own agony. And even in relation to desired checkable information there is often the problem of knowing whether or not the victim of torture is holding out or does not really know; this is especially the case with hardened terrorists. So by comparison with telephone and surveillance warrants, torture warrants are likely to yield unreliable information; there is a serious question about the quality of much of the information provided under a system of torture warrants. A further reason to disparage the utility of torture warrants is that, again unlike telephone and surveillance warrants, torture warrants are to be issued only in extreme emergencies. By contrast, telephone interception and surveillance warrants are issued as a matter of routine, albeit only under certain (recurring) conditions. Accordingly, the volume of information capable of being provided under a system of torture warrants is extremely limited. In short, over time the torture warrant system is likely only to yield an extremely small quantity of reliable information. This overall likely lack of utility of the torture warrant system qua institution is important to keep in mind in the context of a protracted struggle against terrorism involving ongoing loss of life on both sides. Here the torture warrant system stands in sharp contrast to telephone interception and surveillance warrant systems. Moreover, it is precisely because the set of conditions under which it is reasonable and effective to infringe privacy rights recurs, that infringements of privacy rights by police can reasonably be legalised and institutionalised, e.g., by means of a warrant system. Arguably, the proponents of the torture warrant system have made the mistake of proposing a legal/institutional solution to what ought to be regarded as a one-off moral  problem;[20]  hence the inadequacy of their proposal.  At any rate, the conclusion must be that any attempt to compare torture warrants to surveillance or interception warrants is entirely spurious. Torture is a very different beast.  In the light of the above three points concerning torture warrants that have just been made in the comparison between these and surveillance and interception warrants, the inevitable conclusion is that the practice of torture could not be contained under a system of legalised torture warrants and the consequences of its not being contained would be horrific. Moreover, as noted above, and argued by Luban, Waldron and others, the damage to liberal institutions would be incalculable. Finally, the benefits of a system of legalised torture warrants over the longer term are likely to be slight; and certainly easily outweighed by the costs. So Dershowitz is entirely misguided in his advocacy of torture warrants. Indeed, as repeatedly mentioned above, we have the example of Israel’s use, or rather abuse, of this system to provide specific empirical evidence against the introduction of torture warrants.  So torture warrants are highly undesirable, indeed a threat to liberal democratic institutions. Moreover, torture warrants are unnecessary. As has been argued above, there may well be one-off emergencies in which the use of torture is morally justifiable. In those cases, the relevant public officials must bite the bullet and do what is morally required, e.g., torture the terrorist to save thousands of innocent people. In such an emergency, the military or police officers involved will need to break the law on this one occasion. But in itself this is a small price to pay; and a price the police, the military and the politicians have shown themselves only too willing to pay in situations that are far from emergencies.  One final matter. What should be done to the military officer, police officer, or other public official who tortures the terrorist if – after saving the city – their crime is discovered? Quite clearly he (or she) should resign or be dismissed from their position; public institutions cannot suffer among their ranks those who commit serious crimes. Further, the public official in question must be tried, convicted, and sentenced for committing the crime of  torture.[21]  Obviously, there are (to say the least) mitigating circumstances, and the sentence should be commuted to, say, one day in prison. Would public officials be prepared to act to save thousands of innocent lives, if they knew they might lose their job and/or suffer some minor punishment? Presumably many would be prepared to so act in these circumstances. On the other hand, perhaps many public officials would never set aside their interest in keeping their jobs and avoiding minor punishments in order to save innocent lives. If so, this is not a consideration in favour of legalising torture. For surely the consequences of setting up a legalised torture chamber and putting such self-interested and uncaring persons in charge of it are likely to be horrendous 