Preface: I recently reread Arthur M. Schlesinger’s ‘The Imperial Presidency’ for a course and found his thoughts pertinent to the torture debate raging today.  I borrow heavily from its opening chapters in framing the first portion of this entry.  The quotes from Jefferson and Locke and the analysis of them are summarizing his thoughts, not mine, but since blogging here renders footnoting impossible, they stand unattributed.   The following are excerpts from a longer correspondence with two liberal friends who celebrated Obama’s release of the torture memos as ending a barbaric and inexpedient practice while improving our image around the Muslim world.

“On great occasions every good officer must be ready to risk himself in going beyond the strict line of the law, when the public preservation requires it; his motives will be a justification. There are extreme cases where the laws become inadequate to their own preservation, and where the universal recourse is a dictator, or martial law.” ~ Thomas Jefferson

“A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of a higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means. The line of discrimination between cases may be difficult, but the good officer is bound to draw it at his own peril, and throw himself on the justice of his country and the rectitude of his motives.” ~ Thomas Jefferson

What powers are granted the executive in an emergency?   More importantly, who defines when such a situation exists? The Constitution is vague on both questions. The Founders only explicitly spelled out that the right of habeus corpus could be suspended during time of rebellion and insurrection. The document is silent on all other matters, implying that protections granted in the Bill of Rights cannot be revoked.
The Founders were also influenced by Locke, as the quotes I borrow from Jefferson indicate. In his 2nd Treatise of government, Locke maintained that the preservation of life in a society represented a law of nature that superseded all parchment barriers. For reasons of expediency, Locke placed this prerogative squarely in the hands of the executive during an emergency. For Locke, the prerogative permitted the “ruler to do several things of his own free choice, where the law was silent, and sometimes, too, against the direct letter of the law [and] he must have the power to act according to discretion for the public good, without the prescription of law and sometimes even against it.” In other words, Locke maintains that the executive can implement extralegal and even illegal action during times of emergency, but with the caveat that such actions were only moral if done with the consent of the people and legislature, otherwise it is tyranny against which the populace has the duty to rebel.

I doubt even the staunchest civil libertarians would insist upon tying down the state while the corpses continued to pile. The Founders could not foresee a suitcase bomb in downtown Manhattan killing millions and crippling the nation’s commerce or a similar situation in Washington D.C. destroying the federal government. Such situations are farfetched but not outside the realm of reasonable probability and were used by the Bush Administration to justify an unprecedented expansion of the state’s surveillance power in the wake of September 11. Should a catastrophic terrorist attack strike the United States, we and our descendents will live under a permanent police state under which liberties such as free association, speech, and press, to say nothing of virtue and individual excellence, can never flourish.
Doing a great right sometimes entails doing a little wrong, as you seem to accept. You call my argument utilitarian yet you are willing to outsource “torture” to unspecified other areas, apparently under the assumption that a detainee who fails to disclose an imminent mass murder forfeits his rights, but that America is vindicated so long as it upholds the letter of the law while ignoring its intent. In doing so, you establish no standard and appear to endorse a vague cost-benefit test through which the imminence and magnitude of an attack is somehow measured against the probability of a detainee providing useful information which permits the state to torture. I see no difference between your position and mine.
Saying torture is always wrong is like saying fire is always bad. It is not, it depends on the time and place and the ends its employment entails. I agree with Lincoln, Richard Posner, and others who maintain there exists a peacetime constitution and an emergency one and extraordinary circumstances mandates the executive exercise a wide array of powers to protect the nation. I do not see this as controversial for reasons I have spelled out. Constitutional scholars should dwell upon the normative and plausible checks the legislature may impose on the executive during such a period rather than if torture is legal.

 
I favor granting the executive a leeway in claiming emergency powers and in obtaining information you may find excessive. I believe the executive department knows better than you or I which techniques provide the best information and my bar for the implementation of “torture” to detainees is accordingly much lower than I imagine yours is. I am also willing to accept well-intentioned errors in these activities as regrettable, but acceptable mistakes.

You ask for accountability from the government, yet it is the self-righteous and hyperbolic rhetoric of the humanitarians that renders vigorous defenses of the necessity of such techniques politically untenable for a Democratic president, which suggests such practices shall be driven further underground.
As an armchair strategist, I doubt anything we say vis-à-vis torture matters at all in the recruitment ranks of extremist groups or in shaping the opinions of those Third Worlders most inclined to have a thoughtful position on the United States. America’s unabated willingness to exert its political and economic power and its association with the proliferation of consumerism and secularism into modernizing regions of the world remain the most salient critiques of U.S. foreign policy. These transcend any debate over “torture.” Without any supporting evidence, I will suggest very few people around the world are really invested in whether America lives up to its universalist ideals or not and only a small segment of this group even considers whether the United States tortures its detainees or not as at all relevant to answering that question. This is not to say the question is uninteresting, but that such a decision is irrelevant to shaping our image around the world and that those who maintain a belated mea cupla on enhanced interrogation techniques somehow mitigates the recruitment ranks or ardor of extremist groups woefully overlooks other grievances they possess.

Attributing Abu Gharib some meaningful causal agency is quite the stretch, to put it nicely, absurd to put it bluntly. For those so inclined to hate what the United States represents that they will commit murder ten thousand fold, I imagine the abandonment of “torture” by the West functions in the same manner a fig leaf on a statue does for art connessiuers. It needlessly draws attention to what is covered and will only please those who are only dimly aware of the bigger picture, yet so uncomfortable with a natural if nefarious part of it that they demand the curator cover it up.

From the armchair strategist, the only benefit that may come from Obama’s public disavowal of “torture” is that it may lower the political costs of cooperating with the United States on defense matters for Western Europeans leaders.

On the final point, as thinking through human rights entails defining the contexts under which some individuals or classes of people forfeit their rights, I see discussions of abortion and torture as quite linked ethically and morally, if not perhaps legally from the perspective of international law.  As you picked up on, I was somewhat snarkily implying that those making arguments that the world demands the U.S. stop torturing that an equally, if not more powerful mandate exists in world opinion to overrule our state’s position on abortion.