The best argument against strictly enforcing existing prohibitions against torture is that our government may someday hold a person involved in an imminent terrorist attack intended to kill thousands and that it would be moral to torture out of him the information necessary to avert the attack. National Football League instant replay rules show us how to deal with this unlikely but serious situation without opening the door to using torture in other situations.
The President should be authorized to torture each half term up to two persons whom he believes (a) are involved in an imminent terrorist attack likely to kill at least 10 Americans and (b) possess information essential to averting the attack. The President should be required to notify relevant Congressional committees within 24 hours of each authorization and provide full secret briefings on the results every 48 hours.
Holding hearings on such a bill could be very revealing. Those who favor more than 2 torture authorizations every 2 years would reveal they do not want to limit torture to ticking time bomb situations and should be pressed for justification. Those who think a threat of 10 or more deaths in a terrorist attack is too high a bar can offer and defend lower thresholds. Those who want to allow torture of persons who may have information but are not thought to be involved in an impending terrorist attack can make their case for torturing innocents. The definition of torture will be at issue. Administration unwillingness to provide secret reports to Congressional Committees in exchange for getting authority to stop a ticking time bomb would suggest the Administration cares more about unfettered Executive power and avoidance of accountability than averting terrorist attacks.