Jonah, I think whether I’m right or not about “absurd” comes down to how likely you think the ticking bomb scenario (or something like it) is, and what the cost of inaction is.

When you make something illegal, there is a certain percentage of people – perhaps even a high percentage – who will follow the law, even if they think it is a dumb law. (I like to think I am one of them, although I’ve conceded that I don’t know what I’d do if I had taken an oath to uphold the law and the ticking bomb scenario arose). That’s an acceptable risk in most of the hidden law situations you’re talking about, since they don’t involve death on a massive scale. But I don’t think it’s an acceptable risk when you’re dealing with a real national security threat.

A good analogy for torture/coercion might be covert operations. Much of the (justifiable) criticism of the Clinton administration after the 1998 embassy bombings focuses on the failure to kill bin Laden when we had chances to do so. Murder is pretty serious business, even if it is carried out overseas (where, unlike torture, it would not necessarily violate U.S. law). But the rationale for killing bin Laden was (and is) obvious. (As is the rationale for the targeted assassinations of terrorist leaders that the Israelis do.)

Nevertheless, we don’t rely on hidden law in such a scenario because the stakes are too high to pretend that something essential to our security is illegal. Instead, the law gives the president authority to order a covert operation. (See 50 U.S.C. Sec. 413b). It seems to me that a similar law, empowering the President or a very high-ranking official to authorize coercive interrogation under appropriate circumstances, would be preferable to a blanket prohibition that we can only hope people will have the good sense to ignore – at their peril – when the time comes.