A hidden nuclear-time-bomb in Manhattan scheduled to explode in 24 hours; a captured member of the Palestine Liberation Front in CIA custody who knows the devices location; the question of "To torture or not to torture". Is this a blockbuster thriller, a fear mongering scenario or a very-real possibility? Alfred McCoy in A Question of Torture argues stuff of movies as it assumes many ifs, and in the 60-year history of the CIA such a black-and-white situation has never occurred .
Regardless of whether the scenario is far fetched or not, we can still ask if torture would be justified. In a well-known philosophical conundrum a school bus full of children has stalled on the train tracks while a train hurtles closer. You are faced with the option of flipping a switch sending the train conductor to his/her death but saving the school children. Assuming you would flip the switch, by extension, torture in the nuclear situation would also be justified. (This of course assumes that torture itself works, a debatable point.) As such, do we need to make a law stating that, "Given a ticking bomb and a captured terrorist, then yes to torture"? Precedent says otherwise. Is arson okay? What if a terrorist is in the building who is soon to release biological death? Rather than include the what-ifs in the legislative, the government generally leaves the judicial with the task of making exceptions for extenuating circumstances. Therefore, the torture default should be set to no with it clearly still an option, rather than set to yes which then creates a situation where it may be used in questionable practice. The following are two example of the law being broken in special circumstances.
1962 Kennedy Assassination
Presidential assassination was not a federal crime. Technically, as Kennedy lay dead at the Parkland hospital he was a homicide victim under the jurisdiction of the Dallas Police Department. As such, his body could not be removed until a full autopsy was conducted. The FBI more or less told the locals to screw themselves and then promptly flew the body to Washington.
2008 Colombian strike on FARC commander located in Ecuador
Occurring just last week, a FARC rebel commander was located just inside Ecuador. Colombian officials making use of the intelligence conducted an airstrike which killed the individual but technically violated Ecuadorian sovereignty. The US quickly backed the Colombians.
In these two instances illegal actions occurred in extenuating circumstances. In neither was it necessary to create a loop-hole ahead of time. The lesson learned is that lawful rules can be broken lawfully.