My own view is the same as Obama’s and Hillary Clinton’s. As a moral matter, I am categorically opposed to torture, without exception. But as a factual matter, I think every president would at least consider the option of torture if confronted with an actual ticking bomb. President Clinton said he would consider torture and President George W. Bush actually authorized the use of waterboarding, even in non-ticking bomb situations. Bush denied that waterboarding and other forms of extreme interrogation measures he approved were torture, but they would seem to fit any reasonable definition of that term.
If I’m right, and if every president would, in fact, consider opting for the torture of one terrorist rather than permitting thousands of innocent Americans to be blown up, then the following question must be asked: Would it be better or worse for a law to be passed requiring the president to secure a warrant before (or, in a real emergency, during or right after) he could employ this drastic measure? Such a law would implicitly legitimate torture in extreme situations, and that’s a bad thing, but it would also create visibility and accountability, which is a good thing.
Once again, we are faced with a terrible choice of evils.
My own view — which is controversial among liberal and conservatives alike — is that, on balance, visibility and accountability are essential to democracy, even if it means lending some legitimacy to an immoral and despicable tactic such as torture. I wish no one would ever torture, but I’m sure some will if the ticking bomb situation were ever to arise. That’s why I favor torture warrants.