Sullivan's essay was written largely in response to Krauthammer, and he makes the following outstanding point (among many others). Even assuming that all of Krauthammer's conditions apply (there is a terrorist who has planted a nuclear bomb in a major city, he has been captured after planting the bomb but before it goes off, he will divulge the location of the bomb under torture, and that there is no other way to obtain this information):
It is possible to concede that, in [such] an extremely rare circumstance, torture may be used without conceding that it should be legalized. One imperfect but instructive analogy is civil disobedience. In that case, laws are indeed broken, but that does not establish that the laws should be broken. In fact, civil disobedience implies precisely that laws should not be broken, and protesters who engage in it present themselves promptly for imprisonment and legal sanction on exactly those grounds. They do so for demonstrative reasons. They are not saying that laws don't matter. They are saying that laws do matter, that they should be enforced, but that their conscience in this instance demands that they disobey them.Go and read the entire essay for the best analysis of this issue that I've seen. It concludes:
In extremis, a rough parallel can be drawn for a president faced with the kind of horrendous decision on which Krauthammer rests his entire case. What should a president do? The answer is simple: He may have to break the law. In the Krauthammer scenario, a president might well decide that, if the survival of the nation is at stake, he must make an exception. At the same time, he must subject himself--and so must those assigned to conduct the torture--to the consequences of an illegal act. Those guilty of torturing another human being must be punished--or pardoned ex-post-facto. If the torture is revealed to be useless, if the tortured man is shown to have been innocent or ignorant of the information he was tortured to reveal, then those responsible must face the full brunt of the law for, in Krauthammer's words, such a "terrible and monstrous thing."
By endorsing torture--on anyone, anywhere, for any reason--we help obliterate the very values we are trying to promote. You can see this contradiction in Krauthammer's own words: We are "morally compelled" to commit "a terrible and monstrous thing." We are obliged to destroy the village in order to save it. We have to extinguish the most basic principle that defines America in order to save America.
No, we don't. In order to retain fundamental American values, we have to banish from the United States the totalitarian impulse that is integral to every act of torture. We have to ensure that the virus of tyranny is never given an opening to infect the Constitution and replicate into something that corrupts as deeply as it wounds. We should mark the words of Ian Fishback, one of the heroes of this war: "Will we confront danger and adversity in order to preserve our ideals, or will our courage and commitment to individual rights wither at the prospect of sacrifice? My response is simple. If we abandon our ideals in the face of adversity and aggression, then those ideals were never really in our possession. I would rather die fighting than give up even the smallest part of the idea that is 'America.'" If we legalize torture, even under constrained conditions, we will have given up a large part of the idea that is America. We will have lost the war before we have given ourselves the chance to win it.