In short, my answer to the Ticking Time Bomb scenario is simple. We should never preauthorize torture. If the President believes he must for the good of the country order torture, and if that order is carried out by a lower official, that official must be prepared to face the legal, political, and moral consequences of his actions. Perhaps they will not be impeached, prosecuted, convicted, or morally condemned. But that is the risk they must assume when making such use of their governmental power. Anyone, even the President of the United States, who decides he must torture or order torture, because he feels it is absolutely imperative, should do so at his own peril. The President should never be “permitted,” even when he believes grave circumstances require it, to order a subordinate to torture. If he does so, it should be because he feels that it is vitally important to the survival of our country. And after the President delivers such an order, he should, as soon as possible, resign and accept prosecution for his acts, acknowledging that when the commander in chief becomes torturer in chief, his orders have crossed the line from legal to illegal conduct.
(Harold Hongju Koh, "Can the President Be Torturer in Chief?" Indiana Law Journal 81 [fall 2006]: 1145-67, at 1167)
Keith Burgess-Jackson, J.D., Ph.D. 