Questions about Waterboarding

The question being mulled over right now by the U.S.A.G. is not whether waterboarding is torture, but whether it was so obviously illegal that those attorneys who wrote memoranda opining that it was not illegal should be prosecuted for a crime.

1. I don't care how off base I think another lawyer may be, I disagree with prosecuting a colleague who happens to arrive at a different conclusion than someone else on a question of law.

2. "The law" is not usually amenable to black-and-white answers.

3. Because the law is not usually fixed, attorneys who render opinions on the law will put qualifiers in their memos like "probably" or "highly likely," kind of like the IPCC put throughout its 2007 climate change report (yup, I've been reading). My guess is that qualifications on the opinions will be found in the memos.

4. The decision to waterboard was essentially a political one, that came with political consequences. Morality is involved with every decision, and there are moral consequences as well.

5. The only circumstance where I could go along with a prosecution for a legal opinion would be where there was a specific law on the books (The "Anti-Waterboarding Act," complete with definitions), that outlawed the practice, and the attorney writing the opinion is aware of the law and denies that it exists or claims that it says something different than it actually says.

Which raises a question: Since Mrs. Speaker Pelosi and others were aware that the practice was being talked about, if they felt it was illegal, why didn't they just pass a law specifically prohibiting waterboarding? Maybe if they did pass that law, it would highlight the fact that absent a statute prohibiting waterboarding, "the law" on waterboarding is unclear.

Oops! in September 2006 Sen. Kennedy tried to get waterboarding defined as a war crime. Didn't pass. Double oops!! in February of 2008, with Mrs. Speaker Pelosi front and center in the House, Congress passed a bill restricting interrogations to Army-field-manual techniques, prohibiting waterboarding by exclusion. Pres. Bush vetoed the bill.

Last question: Now that there are enough votes in Congress and a President who would sign the bill, why don't the Democrats finish the job and make waterboarding illegal?

This post isn't about the morality of waterboarding, torture, the trade-offs, benefits, burdens, etc. It is about the short-sighted cheapening of our system that occurs when a new administration acts like a new regime looking for payback, when Pres. Obama is ready to feed government lawyers to the wolves (actually having Mr. Holder do the feeding based on Mr. Holder's legal opinion?!!?), so long as the wolves agree with him and the government lawyers gave opinions to his predecessor.

On this one, I can honestly say that if the shoe were on the other foot, I would not be tempted to prosecute. I think the Chrysler bailout is unconstitutional (and an obvious waste of $10.5 billion in taxpayer money). But on a change of administration, I would not be for prosecuting the attorneys who said it was constitutional, no matter how ruinous the pursuit of the policy turned (is turning!) out to be.

Sorry for the long post.