1. Waterboarding should be illegal.
2. The prosecutor, the judge, or the jury may let the person go if they believe it was morally justified. But you have to put yourself on the line if you're going to do that. No exceptions are set forth in the law. The example where I would let the person go, from the story:
In my column, I raised the example of the German police chief who threatened a captured kidnapper with torture because he refused to reveal where he had buried alive his 12-year-old victim. The kidnapper promptly gave the location. The German police chief lost his job for making the threat.
It may well have been more noble on some level for him not to have made the threat, but I prefer a less rigid concept of morality. I would not have fired the police chief, or prosecuted him. I agree completely with his actions, even though torture is repulsive. The boy's life matters more than my rectitude or peace of mind.