I have questions for anyone who agrees with Mr. Krauthammer's "two exceptions to the no-torture rule: the ticking time bomb scenario and its less extreme variant in which a high-value terrorist refuses to divulge crucial information that could save innocent lives".
Who decides if the exceptions apply in a particular case? An agent of the CIA? A lawyer at the Justice Department? The Attorney General? The President? Should there be a special court like the FISA court? Should there be torture warrants similar to search warrants? Who is to be responsible for giving the go ahead and how will we know that this person is really acting responsibly? Who holds that individual accountable?
How is it determined that the subject is a terrorist? Must he be convicted of terrorism in a court of law? Is it a determination by a military tribunal? How much time should a court or tribunal spend on coming to a decision? Should they hear out the accused terrorist first? Should anyone be appointed to speak for the accused? Does it make a difference if the accused is a US citizen?
Why does it have to be a terrorist? Why not a common gangster who happens to have "crucial information that could save innocent lives"? What if it is a proper POW captured in uniform in a real war? How about a mother who may know the plans of a terrorist son? (Innocent lives assumed at risk in each case).
If we capture an enemy torturer who has operated under rules identical to those we made for ourselves do we nevertheless prosecute him for the crime of torture?
Should we formally withdraw from treaties that forbid us to torture or should we simply violate them? (Remember, we are talking about exceptions to a "no-torture rule" so it is a given that we are torturing in those cases).