Here we are faced with something that, for this writer at least, is something of an enigma. It does not appear that Aquinas approved of this practice. Nowhere does he defend it... [H]e neither defends or condemns the judicial institution of torture. The omission is curious, to say the least.... What are we to conclude? One is tempted to say that Aquinas “copped out,” that he ducked the question, perhaps because the temper of the times would not have tolerated an honest answer.There's a signal difference between the cases, which is that judicial torture is designed to compel confessions that will allow us to settle at law matters that have happened in the past; the American cases involve an attempt to prevent a harm in the future. The person under questioning may be presumed innocent, as there has been no trial: there may not even be a crime for which he might later be tried if the questioning is successful. Some of those taken and questioned were not even conspirators, but drivers or associates who may not know the significance of what they know. They might simply know something that could stop a crime, were it made known to the right people in the right hour.
The torture of witnesses, as mandated in Roman law, involves inflicting pain on persons who are, at law, innocent of any crime. In his discussion of homicide, he absolutely rejects the killing of innocent persons. In the following question, concerned with “other injuries committed against persons” he does not raise the question of mutilating, beating or incarcerating the innocent. One likes to think that for him, the question could not arise: the context is clearly that of justice. Here, as with Aristotle, there is no question of “justifying” actions otherwise reprehensible on the basis of some greater good. Punishing the innocent is quite simply unjust. Hence there can be no justification for it.
Yet he was faced with an institution which was not only practiced, but legislated, both by the Church at the highest level, and by all contemporary civil societies.
So we're running right into the teeth of the problem that Aristotle is describing, and about which Aquinas was silent. But Aquinas does speak to the question of things we would consider torture in terms of correcting slaves.
Now it is unlawful to do a person a harm, except by way of punishment in the cause of justice. Again, no man justly punishes another, except one who is subject to his jurisdiction. Therefore it is not lawful for a man to strike another, unless he have some power over the one whom he strikes. And since the child is subject to the power of the parent, and the slave to the power of his master, a parent can lawfully strike his child, and a master his slave that instruction may be enforced by correction.Then the question becomes one of whether we have proper jurisdiction to administer the correction -- as for example by explaining that it is improper to withhold information that might prevent a terrorist attack! Oddly enough, we seem to have decided that we have the right exactly where we don't have the jurisdiction: an American citizen is normally protected by the Eighth Amendment, whereas those captured in Afghanistan who are not and have never been American citizens (nor, perhaps, ever on American soil) are the ones we tend to use these techniques against.
I'm not sure we haven't gotten this one wrong all the way around. Some things can't be justified. If we feel we have to do it anyway, because the matter of preventing terrorist assaults is so grave, we should not think ourselves justified in doing it. We should think ourselves guilty of a sin, at least; and that's what confession is for.