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This chapter possesses a methodological rather than normative purpose. The logic and deployment of ticking-time-bomb cases rather than what follows from them is considered here. Despite their simplicity, these cases have been misunderstood, whether in terms of what they claim, what role they should to play in our moral thinking, or even whether they should play any role at all. What matters is that there is some threat to many people that can be avoided only through the torture of someone already in custody. Furthermore, most of the contexts worth considering probably will be those involving terrorists and weapons, if not necessarily bombs.

This chapter introduces Part II, examining the ticking bomb question as one of public, practical, morality in the real world, namely whether it is morally justifiable for democratic states facing terrorism to torture in order to save many innocent lives. It outlines the parameters for discussing the question. Part II is to first address the question of whether transferring the ‘torture in a ticking bomb situation’ (TBS) moral dilemma from the private to the public sphere in itself entails a different moral solution. Secondly, the question is to be addressed of whether — accepting arguendo that torture in this situation is morally justified — states can torture in TBSs while limiting both torture and its direct and indirect harm to a morally acceptable level, or else must slide down an inevitable, and intolerable ‘slippery slope’. ‘Slippery surface’ dangers unique to the public sphere are also discussed.

This chapter concludes the discussion of the ticking bomb question as a one of pure individual morality. For the purpose of defending an absolute prohibition on torture a minimal absolutist position, rather than a wider moral theory, is sufficient. The overwhelming strength of the ‘numbers’ in the torture-justifying argument is also its moral downfall, among other things because it must allow the torture of the innocent, making each of us, potentially, a victim of torture — as well as a torturer. The qualities of character needed for one person to inflict unimaginable cruelty upon another cannot sit easily with our concept of a good character. A torture-justifier would indeed commit atrocities, where necessary, to save us, but only if we belong to a large enough number of potential victims. The minimal absolutist, in contrast, would always do anything humanly possible to save innocent lives.

Recent literature arguing for, or reaffirming, the impermissibility of torture has deplored the ticking bomb hypothetical and its frequent invocation. Examples of such arguments are found in the work of David Luban and Henry Shue. This chapter shares their views, by and large, but at the same time holds that just what is so problematic about the hypothetical remains somewhat unclear. This chapter differentiates this use of a hypothetical, or thought experiment from those famously put forward by Philippa Foot and Judith Jarvis Thomson, arguing that the ticking bomb hypothetical has the singular problem that it relies for its effectiveness on the plausibility of the scenario, and yet it is put forward as if like other hypotheticals its plausibility does not matter. In the rest of the chapter the author shows how very implausible the hypothetical is, drawing from the work of Darius Rejali, former FBI agent Ali Soufan, and others. In brief, it relies on the false notion that torture is more effective in eliciting the truth than "non-enhanced" interrogation or that a combination of the two works better than the latter.

This chapter concludes Part III, which examines four models of legalized torture. Neither Israel nor the USA have succeeded in limiting torture to ticking bomb situations (or to high value detainees), although both states have refined their models in an effort to do so. Both states claim, probably rightly in some specific cases, that torturing (not so named) has thwarted terrorist attacks and saved lives. Neither, however, has claimed to have thereby put an end to such attacks, and the counterclaim that torture has overall done more harm than good, including in terms of human lives, cannot easily be refuted. Other conclusions are to be drawn following the discussion of salient legal issues arising from the models, in Part IV.

This chapter contains a normative reply to the question: Is it morally permissible to torture in ticking-time-bomb cases? This question is trickier than it looks for the simple reason that there is a myriad of moral theories, and different theories may yield different answers. An ineffective strategy of amelioration in this regard would be to try to defend one moral theory against its rivals, both because that would take us too far afield and because such a defense would not be very convincing. No matter how well utilitarianism is defended by the author against deontologist friends—or vice versa—none of the parties ever seems swayed. Rather than staking the chances on those prospects, he proposes something else.

This chapter introduces the methodology and structure of Part I, which addresses the question of whether it is morally justifiable for an individual to torture a terrorist when it is the only way to obtain information that would save many innocent lives. This scenario — the ticking bomb situation (TBS) — is to be discussed in a ‘pure’ form, free from factual doubts and society-wide or long term consequences. The chapter outlines the parameters for discussing the question, and defines the features of the presumed situation. It explains the methodological approach to be adopted in this Part: the scope is to be kept limited; positions put forward are required to maintain strict logical form; a dialogic, conversational style is to be used; and an open, eclectic approach to content is to be maintained.

This chapter details the consequentialist arguments for torturing the terrorist in a ticking bomb situation. Consequentialist/utilitarians argue that a moral cost-benefit analysis needs to be made, pitting the suffering of the one terrorist under torture against the suffering of so many innocent civilians if the terrorist bomb were to explode. Such analysis would necessarily lead to a lesser evil choice in favour of torturing the terrorist. Deontologists with a ‘disastrous consequences clause’, allowing for consequentialist considerations to prevail, albeit only in extreme emergencies, raise arguments for torture that are identical. Therefore it is concluded that their approach to the ticking bomb dilemma is indistinguishable, for the purposes of this discussion, from that of consistent consequentialists.

This chapter provides arguments for a minimal absolutist prohibition on torture. Logically, once anti-absolutism is rejected, torture must be prohibited absolutely, as it contains the worst acts one person can possibly inflict on another. Some examples are used to illustrate the depth of inhumanity to which, it is argued, those who justify torture in a ticking bomb situation must be prepared to sink. To become a torturer, a person must suppress all compassion and self-regard, and become instead a calculating pain-inflicting machine. The torture-justifying morality is incapable of supplying reasons not to torture the terrorist's child to ensure his compliance. Nor would the terrorist's potential innocent civilians be safe from calculations by torture-justifiers that their death would prevent a more costly attack and thus must not be prevented. In contrast, a minimal absolutist view would oppose anyone becoming a victim of torture or of terrorism.

This chapter considers whether moral philosophers should accept as part of their moral methodology the study hypothetical cases, such as ticking bomb scenarios, in thinking about torture. In response to the criticism of such scenarios by Albie Sachs, this chapter argues that such cases are useful for thinking about the ethics of torture if their function is properly understood. Such thought experiments are quite typical of moral philosophy in general, and do not necessarily generate objections. Moreover, those who engage in evil actions render themselves liable to torture as a means of prevention or self-defense. Hence this chapter rejects any absolute moral prohibition on torture. Nonetheless, there are pragmatic, consequentialist considerations that can justify an absolute legal prohibition on torture. Such a legal rule would help prevent mistakes and help prevent the torture of the innocent and others not liable to attack on just war theory. An absolute legal prohibition on torture is justified because on balance no more flexible stricture on its use is likely to be as productive of good outcomes.

This chapter describes and analyzes the model of legalized torture established by a 1999 Israeli Supreme Court (as High Court of Justice, HCJ) ruling, under which interrogation of suspected terrorists has been regulated in Israel between then and the present. Declaring the Landau system as illegal, since the ‘defence of necessity’ (DoN) cannot apply a priori and interrogators have no authority to torture or ill-treat, the Court nevertheless ruled that the DoN is available ex post facto to interrogators who torture (applied ‘physical methods’) in ticking bomb situations. According to official data, dozens of Palestinians were interrogated annually using ‘extraordinary measures’ in TBSs during the second Palestinian Intifadah's first two years. Human rights organizations claim much higher numbers. No interrogators have been prosecuted. Methods, pronounced by a UN expert to amount to torture, include incommunicado detention, sleep deprivation, shackling in painful positions, and other forms of violence and humiliation.

This chapter addresses the wider issue that a moral agent facing a ticking bomb situation (TBS) should consider: whether ultimately a decision to torture the terrorist or not should be determined by consequences or by absolute moral prohibitions. First, the consequences of not torturing in the scenario and the planned terrorist attack occurring are described, illustrated by the 9/11 terrorist attacks on New York and a terrorist attack in Jerusalem. Then the two prominent moral-philosophical views clashing over the morality of action, including in such extreme emergencies, are outlined: on the one hand consequentialism (or utilitarianism), advocated by the likes of Jeremy Bentham and John Stuart Mill, and determining the morality of actions by their consequences; on the other deontology, whose main advocate was Immanuel Kant, which emphasizes duties to oneself and others, and stipulates that certain types of acts must be prohibited absolutely (‘no-go areas’).

This chapter considers whether there is, in extreme situations, a ‘public morality’ that is distinct from ‘private morality’ and its implications on the ‘ticking bomb’ debate, including a discussion of the ‘dirty hands’ dilemma. Theorists have argued that there are differences between action in the private and public spheres relating to representation, numbers, impersonality and impartiality, violence and consequences. However, those justifying torture in a ticking bomb situation have relied on general consequentialist arguments rather than limiting them to the public sphere or to officials. The effects of torture by officials would nevertheless be much more extensive than if inflicted by a private individual, and officials have a positive duty to protect the population. Theorists have argued that in the real world citizens must limit the powers of leaders, including by absolute prohibitions based on general moral grounds.

This chapter considers a family of constitutional theories that advocate for an internal principle of necessity. It looks at factors that argue constitutional constraints that can become a “suicide pact” or promote acting illegally first then asking forgiveness later. It also explains why the constitutional theories fail both as interpretations of the American Constitution and as pragmatic solutions to a paradox of constitutionalism. The chapter discusses justifications for emergency measures that often rely on extreme cases of potential “ticking bombs” in order to justify the use of torture. It argues that constitutional theories cannot justify torture while remaining theories of constitutionalism. It also talks about a key feature of American constitutionalism that includes the existence of limits to the means available to achieve security ends.

This chapter analyses the ‘ticking bomb scenario’ (TBS), which is frequently used to justify torture. Topics covered include myth and fact in the TBS; the TBS and the innocent victim; the evils of torture; Shue’s 2005 paper on torture; the costs and benefits of a torture bureaucracy; and the limits of moral rationality.

This chapter provides the book's conclusions. The consequentialist morality of extreme situations, as advocated by those who justify interrogational torture in a ‘pure’ theoretical ticking bomb situation (TBS), is reflected in the actual legal positions and practices of states facing terrorism that have chosen to torture. However, such states face moral, practical and legal obstacles, some of them insurmountable. The words of a UK diplomat, a Palestinian would-be suicide bomber, and an international terrorist are quoted to illustrate everyone's freedom to make — even facing emergencies, danger, and oppression — minimal absolutist choices, rejecting totally both terrorism and torture. Such choices are not fanatic, impractical, or defeatist. In facing a TBS, we must do anything humanly possible to save the lives at risk, which means doing everything in our power that does not involve losing our own humanity. Which in turn means never to torture or otherwise ill-treat another human being.

This chapter introduces Part III, examining four models of legalized torture. It focuses on each model's legal aspects, but their practical ones are also addressed in order to assess the extent to which the models have succeeded in limiting torture to ticking bomb and similar situations, and minimizing its effects in the wider context. Two models applied in Israel — the Landau model and the High Court of Justice model — are examined, as well as the theoretical ‘torture warrants’ model and the ‘High Value Detainees’ model applied by the USA in its war on terror. Due to its as yet unsettled and constantly changing nature, the US model is deemed to be one of ‘quasi-legalized torture’. Models of total secrecy and hypocrisy are briefly discussed and dismissed.

This chapter describes and analyzes the theoretical ‘torture warrants’ model, according to which judges would issue warrants for torture in ticking bomb situations in the same way that they issue search warrants. The model would be based on principles of issuance by an independent authority, specific authorization, and reasonableness. However, procedures for issuing search warrants are administrative, or quasi-judicial, and ex parte, affording few of the safeguards that courts can offer. Search warrants tend to be issued unquestioningly in the overwhelming majority of cases in the two states examined — Israel and the USA. A properly-issued warrant grants the officials concerned immunity from prosecution, entailing impunity for all officials torturing in good faith. Israel's Supreme Court in effect issued ‘torture warrants’ during the Landau years, consistently allowing torture (‘physical methods’, etc.) whenever the State insisted that there was need for it.

This chapter concludes Part IV, and examines practical aspects of applying criminal law defences to interrogators who torture terrorists. Under international law, states cannot ever justify torture and other ill-treatment — all ‘coercive’ interrogation methods are prohibited absolutely, and those used by the USA and Israel may and do constitute torture. Theoretically, an uncapped ‘lesser evil’ justificatory ‘defence of necessity’ (DoN) may very narrowly be available to torturers in certain domestic legal systems but is firmly rejected in others, as well as in international criminal law. The DoN and all other ex post models are impractical in that they require amateur torturers to face hardened terrorists in dire emergencies. In reality, the perceived recurrence of ‘ticking bomb’ and similar situations inevitably creates a priori systems of torture and impunity, as has happened in Israel. Realistically, democracies facing terrorism must choose between openly legalizing torture and never torturing (the author's recommended option).