Some consequentialists argue that nations, even those that legally disallow torture, can justify its use if they have a terrorist in custody who possesses critical knowledge, such as the location of a time bomb or a weapon of mass destruction that will soon explode and kill many people.
Opponents to the argument usually begin by exposing certain assumptions that tend to be hidden by initial presentations of the scenario and tend to obscure the true costs of permitting torture in "real-life" scenarios—e.g., the assumption that the person is in fact a terrorist, whereas in real life there usually remains uncertainty about whether the person is in fact a terrorist and if they have useful information[2]—and rely on legal, philosophical/moral, and empirical grounds to reaffirm the need for the absolute prohibition of torture.
[6] He wrote in his 1804 essay Means of extraction for extraordinary occasions: Suppose an occasion to arise, in which a suspicion is entertained, as strong as that which would be received as a sufficient ground for arrest and commitment as for felony – a suspicion that at this very time a considerable number of individuals are actually suffering, by illegal violence inflictions equal in intensity to those which if inflicted by the hand of justice, would universally be spoken of under the name of torture.
For the purpose of rescuing from torture these hundred innocents, should any scruple be made of applying equal or superior torture, to extract the requisite information from the mouth of one criminal, who having it in his power to make known the place where at this time the enormity was practicing or about to be practiced, should refuse to do so?The concept was popularized in the 1960s in the novel Les Centurions by Jean Lartéguy which is set during the Algerian war.
[8] According to Darius Rejali, a professor of political science at Reed College, the possibility of sudden, massive destruction of innocent life provided French liberals with a more acceptable justification for committing torture.
[9] After the September 11 attacks, Alan Dershowitz, a prominent American defense attorney, surprised some observers by giving limited support to the idea that torture could be justified.
In September 2002, when reviewing Alan Dershowitz's book, Why Terrorism Works: Understanding the Threat, Responding to the Challenge, Richard Posner, legal scholar and judge of the United States Court of Appeals for the Seventh Circuit, wrote in The New Republic, "If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used – and will be used – to obtain the information.... No one who doubts that this is the case should be in a position of responsibility.
"[11] Some human rights organizations, professional and academic experts, and military and intelligence leaders have absolutely rejected the idea that torture is ever legal or acceptable, even in a so-called ticking bomb situation.
[2] For example, in perhaps the most common variants on the scenario, one must assume that torturers know, with a reasonable degree of certainty that some form of deadly attack is imminent, but lack a crucial component of that plan, such as its precise location.
According to the Parents Television Council, given that each season represents a 24-hour period, Jack Bauer encounters someone who needs torturing to reveal a ticking bomb on average 12 times per day.
[16] In contrast, one of the show's creators has stated: Most terrorism experts will tell you that the ‘ticking time bomb’ situation never occurs in real life, or very rarely.
In that play, the American government has established a protocol of "intensified interrogation" for terrorist suspects which requires participation of the FBI, CIA and the Department of Justice.