Frankly, the fact that we're even having this "conversation" means we've lost the argument. Mark Kleiman has a lot to say on this, but I'll add just a little bit.
We are not living in the world of '24' or a James Bond movie. There is never going to be a situation in which the noble CIA agent knows that the red digits on the timer of the nuclear bomb are counting backwards and he has 90 minutes to determine the location and disarm the thing before Los Angeles blows up. However, if there is such a situation no law enforcement agency or court in the country will prosecute Kiefer Sutherland for saving us all by whatever means necessary, and he would have my full blessing to pull out the thumb screws and go to work.
What we're talking about is torturing innocent people based on what they maybe possibly might be able to tell us. Innocent people? Yes. Last time I checked people were innocent until proven guilty, and frankly our intelligence agencies haven't exactly proven their ability to perform their stated job description, let alone assume the role of judge and jury too.
