How about lawyers who defend rapists, murders, swindlers, child molesters, etc.? If their client is found guilty, should we try them for the underlying crime, too?

Of course, it would have the positive side effect of reducing the number of lawyers and lawmakers, that is for sure!

I also have zero problem whatsoever in courts reviewing those memo's, and even ruling them incorrectly reasoned. That happens all the time in our court system. In fact, more court resources go to such types of contract-oriented litigation than criminal litigation.

What I don't agree with, though, is the concept that if subsequent courts rule the finding of the memo's are flawed and incorrect, that the lawyers who crafted them should be subject to criminal penalties.

If you believe, as I do, that the memo's were indeed a 'good faith' attempt by the lawyers to define the 'bright-line' definition of what did and did not constitute torture as a legal concept, under existing statutes and laws, then absolutely yes, exceeding those definitions are a punishable and prosecutable crime.

No doubt about that answer to me.

GD — do you think that someone above the level of the rapist / murderer / sodomite should be prosecuted? Or are you asking whether they themselves should be?

CS I truly hope you are not teaching your children that the law is such a gray area that even these are sometimes justified.

And no, I do not think that if we'd prosecuted for the acts that I mentioned that there would be any less likelihood that the recent round of actions would have been taken. That may be one of the reasons we disagree- I don't think that people in government will be deterred by past prosecutions, because there's always a new reason to rationalize unethical behavior (look at how widespread that was in both parties after 2001), and there will always be the recklessness among politicians who think that they won't be caught even if someone else was.

So I suppose if I was operating under the same set of assumptions you are about deterrence, I might be more inclined to agree with you but I'm not in agreement on the base assumptions.

So we also have a difference of opinion on how to raise children.
I have taught mine that the US form of government is the noblest form of government attained because the rule of law trumps the rule of men.

Like it or not, burying torture is teaching children that the US is the biggest bully on the block, nothing more.

As to the Church commission, you merely prove my point. We failed to hold any accountable for illegal activities. Do you actually believe that that failure doesn't dovetail into our present problem? Do you really think the Bush Administration would have felt their sense of impunity to the rule of law if criminal activities had been prosecuted in 1975?

“If most people tried to make the case that prosecuting their criminal acts was just 'looking backwards,' or a sign that the prosecutor was motivated by a desire for retribution, they'd be laughed out of court. Imagine the likely reaction if your average crack dealer were to urge the judge not to dwell on the past, or if someone who used accounting fraud to flip houses told offered a prosecutor the chance to be 'very Mandelalike in the sense [of] saying let the past be the past and let us move into the future,' or if I were pulled over for speeding and, when asked if I knew how fast I was going, replied that 'Some things in life need to be mysterious . . . Sometimes you need to just keep walking.' I don't think any of us would get very far.”

And I noticed no one really answered my question regarding past abuses like the ones brought to light by the Church Committee. Why is it that you think we've been able to maintain our status as a country based on rule of law when no one was prosecuted for past crimes like political assassinations and attempted coups?

CS: “…since criminal investigations will actually harden the minds of the people whose minds need to be changed, I oppose prosecutions on those grounds.”

I think it would harden the minds of some people. However, criminal convictions do carry a certain amount of weight. One of the things psychologists have learned is that people sometimes conform their beliefs to match their behavior, rather than the other way around. (Look up “congitive dissonance”). I think that applies here as well; if we prosecute torture that will make it easier to make the case that torture is inconsistent with American values. And I think that if trials occur, they will stand the test of history. If we hold ourselves to (something close to) the same standard we apply to our enemies, I think that future generations are more likely to be inspired by this than to condemn us for it. So I think that over the long term, criminal prosecutions would be more likely to help than to hurt the battle to convince people that torture is (seriously) wrong.

PM: “I'm trying to say that the alienation of the citizens from one another is being exacerbated by some of this.”

That cuts both ways. I share your concern about the divisions in this country, but suggest that the solution is for people to stop defending torture. I don't advocate prosecuting people in the Bush Administration for things like illegal wiretapping, but for me, torture is a different level of evil.

“When half of the public thinks that these acts should be legal, we have a problem to address there that in my opinion is more serious than the application of retribution”

The application of justice can be really instructive. Or would you prefer to allow the ignorant and lied to just keep their fantasies intact?

The problem here is that people without time and skill have been led down the primrose path of America right or wrong. If you wish to heal the nation, instruct the people. Of the group who advocates torture, how many do you think know about the waterboarding executions of WWII?

If we bury this because it will cause an uproar, and it will, what do we teach our children? America is singular in the cornerstone of it's beliefs, no person is above the law. A Democratic Republic is loud, chaotic, and messy. The American people can handle the truth of this chapter as long as they be shown that some principals over ride partisanship.

I would welcome any uproar if it meant that the rule of law can still be taught to our children. Can't you?

If they were in the minority we shouldn't- but when it's slightly more than half of the population, I think it has to be addressed.

Your question about executing or prosecuting the Japanese for waterboarding is the most difficult one for me to reconcile. The best answer I can give is that this is in fact an example of hypocrisy, but it's also important to note that we never specifically made waterboarding illegal in our own domestic statutes. You would think that most people would agree that it meets the legal standard, but obviously many people aren't in agreement with that.

And thus the hypocritical stance is what should be used in the debate to convince people that our laws need to be amended.

Now, there is a distinction of course because the law as it currently stands does prohibit torture. But at issue is how torture is defined, and while it's more clear in international law and convention, it's ambiguous enough in our domestic statutes that legal experts found ways to justify these acts. I do not think they were correct (either in the legal sense or the moral one) in doing so. However, I recognize that we need to convince half the American public that the laws must be strengthened to more strictly and clearly prohibit these acts.

When half of the public thinks that these acts should be legal, we have a problem to address there that in my opinion is more serious than the application of retribution- which is basically the same principle that I apply to the abortion situation.

Your position has been noted, but it just doesn't hold ethical weight.

Justice is not attained through popular consensus. It that were true lynchings would never have been prosecuted on a federal level. Local consensus can be seen by the fact that local court hearings found the perps innocent. Sorry, but the fact that a majority saw no crime does not make it so.

Your logic fails to address the fact that if people feel that torture is ok, then they fail to understand the law. Unfortunate that they are ignorant, but no reason for not proceeding. Why should we go along with the legally and ethically challenged?

Explain to me again how it's good for America to execute those who have water boarded but to move on when we do the same thing?