David Bernstein in
The Hero's Reward in the Volokh Conspiracy asks about when is torture appropriate. The example used is that of trying to stop terrorists from detonating a nuclear device in New York City.
The argument is essentially that of reductio ad absurdum - that there should be some level at which torture is justified. But I would suggest that the real answer to such in real life is jury nullification. Teaching law, I am sure that Bernstein knows more of this than I do, but my impression is that it was fairly prevalent right before the inception of this country when the British were trying Americans for technical crimes that many Americans thought justifiable.
Imagine a jury convicting the guy who got the vital information through torture that saved New York from a terrorist nuclear bomb. I don't see it. He would be a hero. Sure, there would be a level here where the number of potential casualties dropped below the level that could justify torture, but then again, a jury would be much more willing to convict then.
The beauty of jury nullification is that it mitigates to a great extent the black and white nature of the law. Very similar to some extent the operation of equity, versus law.
Of course, a couple of provisos. First, courts are loathe to let juries know about this right. They repeatedly deny defenses' requests for a jury nullification instruction. Indeed, that is one reason it is suggested that attorneys are pretty much excluded from criminal juries. I know that if I ever served, and were faced with what I considered an unjust verdict based on an overly technical interpretation of some law, I would ask "so what"? What can the judge do if we acquit? Nothing. If faced with convicting someone who used torture to save millions of lives, I would vote to acquit.
Secondly, jury nullification is very imprecise. You might get a jury willing to convict, and then you might not. But that maybe is one of its virtues. It turns black and white law into gray application.
Thirdly through, civil servants are notoriously risk adverse. Police, etc., are of course, civil servants. Because of its very nature, you can't depend on jury nullification. It is too nebulous, inexact. Thus, police, etc., are very unlikely to depend on it, except in the most dire circumstances.
Finally, not particularly liking New York City, I can flippantly say that I might vote to convict simply because of that. The fewer the number of New Yorkers, the better. Again, flippantly, I can say that it was good that on 9/11 the terrorists hit the Trade Center, because they killed a bunch of ultra Blue State voters, instead of somewhere in the Red States. My view is that the famous magazine cover showing the view of the world from New York City is correct - that many New Yorkers view the entire world as being pretty much limited to the City and their suburbs in NJ, CN, etc. But, technically, they were Americans who died 9/11 there, so I am, of course, outraged. (I would suggest though that most of us Red State Americans were outraged entirely because Americans were killed, and not because of where they were at the time, the location being irrelevant, as opposed to some Blue State Americans who were also outraged because it was the World Trade Center that was hit).
