Obama did release the memos in such a way to for the GOP to call into question his own ability to keep (or not) the country safe. The easiest thing Obama could have done was simply say that he wasn't going to release the memos due to national security and he was not going to prosecute. Instead he raised the ire of both the far left and the right. The Republicans are attacking him for opening up the country to terrorists. But if Obama, as I think I mentioned in my original post, had gone about it differently it could very well have developed into a strictly partisan battle.

As it is we as a country (unless you're a Rush, etc. fan) are talking about torture and whether it works and whether the Bush administration should be brought to justice. We wouldn't be having this conversation if Obama had said he was going to prosecute the Bush administration. The GOP would have made it into a partisan battle and we'd be whining about how the GOP is trying to derail the issue….. Though they're still trying to derail the issue, just in a different way and not as potently as tehy could.

I don't think Obama did it in a “wink wink, nod nod” sort of way. He may be smart be he can't predict how a multifaceted debate like this would play out among Americans.

If there was one issue I could grill Obama on and find out what he truly thinks and his strategy this is it. Not just because I think it's the most important issue facing our country (do we believe enough in our values to fight for them, even if it means throwing past leaders in prison, or do we let the terrorists win by not fighting for what we believe in?) But this also goes against his training as a lawyer, one who should believe the law. If Obama doesn't believe in the rule of law, then what does he place a higher value on? It's not political favors or friendship or patronage since the most of the people who would be prosecuted are his worst political enemies…. which he appears to want to protect. So I'd love to talk with him on this, more than any other issue.

Yeah, I've just had to quit vacuuming my house but I'll probably need to resume soon before the dog hair takes over.

But on whether or not waterboarding produces the psychological feeling of threat of imminent death, I agree with your ruling on that but apparently Yoo or one of the other attorneys had an overly legalistic explanation, if I understood it correctly, something about how even though there was the sensation of that, it was not of long duration which they parsed as another requirement before it could meet the legal definition.

Ed Morrissey had a post about this (he agrees with you and with me- that that's just taking the parsing to an absurd level.) If you have a chance you may want to go to HotAir and search 'torture memo' or something to locate it.

So yeah, I agree with that and certainly that might be the nail in the coffin for any attempt at legal defense for those acts. I've been, admittedly, arguing for a harder line defense than I think even the law would provide in those particular cases (and as I think I made clear, that's not at all the way my conscience judges the acts even when I've said that the law might not be sufficient to convict.) I was basically trying to show those who argued that 'laws were obviously broken' that it might not in fact be that cut and dried according to the law as written. I mean, a lot of folks feel that the Conventions and other things we're obligated to honor by treaty have more stringent definitions but then why wasn't similar language included in our domestic law? Seems to me that if we'd take that step, then loopholes would be closed for the future.

It does seem that the parsing on that one issue was so extreme that that line of defense might get thrown out.

I just finished reading this entire thread and wish I could have been online. Iknow this is way late in the game, but just a couple comments.

One point did no enter the discussion on the definition of torture, “the threat of imminent death.”

Waterboarding is designed to make the subject feel like he's drowning, and feeling like you're drowning is certainly an experience of imminent death. Knowing that a person feels that sensation, how can waterboarding not be torture? That seems obvious to me, but you may have another way of seeing it.

Additionally, the SERE training example you nailed exactly. SERE trainees can at any time simply say, “I quit.” They also only receive 10-12 waterboarding experiences. We're talking about 183 such times with no “safe word” to stop the session.

I guess I'll have to quit work if I want to get in on these.

Your contention that we are all guilty is, frankly, preposterous. But if you truly believe that, I will gladly stand trial, if all these others will.

If I come across as though I personally think that the ends should justify the means, that's not it- but I do understand those who hold that point of view and I realize that politically, the people who feel that way would then hold our government accountable if it failed to prevent attacks. So, somehow we have to get past the political pressure against tougher anti-torture statutes.

For instance, during the campaign I was willing to accept McCain's stance on not making intel officers subject to the same binding rules as the military is. I understood his reasoning of not being quite so specific, so that enemies would not know exactly how to train to resist tactics which might be used. But now, seeing more detail, I'm willing to say that he was wrong and that stricter guidelines are needed or the intel interrogators will go too far. The tradeoff of whether or not we tip our hand is simply not worth it.

But all of that has to do with what I think the laws should say, not how they should be executed as currently written.

Obama, as a reasonably adept politician, wants to “own” this thing about as much as you want to own a Nixon campaign button.

If “letting the American people decide” is your wink, wink, nod, nod way of acknowledging that, then OK by me.

I see, the ends justify the means. I guess if I rob a grocery store to feed my neighbor's and my starving families, per that logic I shouldn't be tried for breaking the law since I fed people and saved them from starvation. I know this is a Macintosh vs. Granny Smith apples (different, but not so different) comparison, but at what point do you justify breaking the law to a good end? I don't know about you, but all throughout my Catholic school education, it was drilled into my head that the ends never justify the means. If torture is so necessary in only extreme circumstances (the good old Jack Baur analogy), then let whoever feels it's necessary to do it then do it but they also have to be prepared to face the consequences (i.e. sacrificing themselves for the greater good). When government gives the o.k. for torture to be policy, then that makes us no better than those we are fighting.

Wasn't the reasoning behind those secret prisons the fact that we don't have any sovereignty there, unlike Gitmo?

I thought the reasoning was that they were secret

I think it's very likely the courts would use Boumediene as a precedent to extend sovereignty to any military or CIA operated facility. The US statute criminalizing torture doesn't actually specify that it has to be done on our soil, just by a US national. That would make sense with regards to the spirit of the UN Convention Against Torture which established universal jurisdiction for prosecuting torture.

why would the Bush administration draft legal memos saying these techniques complied with US torture laws if they believed the interrogators weren't subject to US law?You may have a point there, I don't know. I would just have to assume that the reason for moving some people overseas like that was to change jurisdiction.

Which was why they moved the detainees to the prisons in Eastern Europe, no?

Boumediene was decided in 2008. Besides, other than the prisons being secret, what would the difference be between them and Gtmo?

But just to put the final nail in the coffin of that argument, why would the Bush administration draft legal memos saying these techniques complied with US torture laws if they believed the interrogators weren't subject to US law?

With regards to “Causualobserver's” comment on my political advisement skills… I would be a terrible political advisor.

But what I suggested was that the American people can decide how to proceed so it's harder to be viewed as a partisan attack by Obaam on teh former Bush administration officials. I don't think Obama wants to even appear that he is donig this for partisan reasons. But if enough American people are for the prosecution of the former Bush administration officials, then so be it.

It's interesting that the polls have a 50/50 split… This shows that it's not just the far lefties who want to push for prosecution. Of the 50% who do not support prosecution I would be interested in knowing how many of those are against it because they truly feel that the Bush admin officials should not be prosecuted because they believe those officials were acting in good faith, and how many people just want to move on…

One last point…. I wonder what the people who actually “know” whats going on behind the scenes think of debates and opinions we (as outsiders) have on these issues. After all much of what we base our argument on is speculation and the own filters we bring to the conversation. None of us probably has this completely right.

Which was why they moved the detainees to the prisons in Eastern Europe, no?

So, although I can see where that might seem unjust to you, to me it's the kind of grand compromise that might be necessary because I think the establishment of stricter rules is the ultimate goal and I think that backward looking investigations might jeopardize our ability to get there.

Obviously Congress should move to make it more clear for the future…and I don't see how investigating would be bad for that. I mean it'd make it more likely if everyone was mad that we couldn't do anything about it to write more specific laws.