Here is where economics can make a contribution. By making torture illegal we are raising the price of torture but we are not raising the price to infinity. If the President or the head of the CIA thinks that torture is required to stop the ticking time bomb then they ought to approve it knowing full well that they face possible prosecution. Only if the price of torture is very high can we expect that it will be used only in the most absolutely urgent of circumstances.I do not agree with this assessment of what economics would suggest.
Suppose the government captured a terrorist whom they strongly suspected had smuggled a small nuclear bomb into the US and set it up to detonate automatically. The terrorist will not say where the bomb is. In Marginal Revolution's world, torturing the terrorist would be illegal, but the government would do it anyway because no jury would send anyone to prison under those circumstances.
I don't think it's so clear. It may be better for the politicians involved to go to some remote town unlikely to be nuked, say anywhere but NYC and DC, and let the nuke go off. In this situation they have zero chance of dying from terrorism and run zero risk of being sent to prison by a journey. Arguing that "torture is illegal and we did not know for sure if we had the right guy" is a bulletproof defense against the charge of not torturing someone when you ought to (not that mandatory torture is any kind of law).
To date, I have not seen people being very understand towards making tough decisions under incomplete information. I have also seen public support for the government grow after a terrorist attack, and shrink when the terrorist attacks stop happening and fade into memory. Given these incentives, a smart government would hide and wait in a ticking bomb scenario, not break the law.
And if not under time pressure, they will render suspects to third parties to torture (thus reducing the cost of torturing others to zero).
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