It can therefore not be criminal for a lawyer to write an opinion that points out that the U.S. statute does not clearly say that waterboarding = torture.

And it can also not be criminal to waterboard someone relying upon the statute as written and as interpreted by government lawyers.

Those who demand prosecutions and punishments, therefore, are in reality advocating extra-legal proceedings using shifting ex post facto legal standards that are even more dangerous than the threat they claim to be addressing. Once set, such a precedent would have the real potential to convert U.S. democracy into a banana republic where outgoing officials would be reluctant to relinquish their grasp on power given the likelihood that the next administration might criminalize policy differences using a retroactive application of a changed legal standard.

As a lawyer, Glenn Greenwald should at least know better. But like his fellow travelers among the howling hordes of the BDS brigades, he seems to have willingly sacrificed the inconvenient strictures of principle and rationality in the hope of getting the emotional high of seeing people they just hate-hate-hate-hate-hate-hate-hate get what’s comin’ to them.

Do I think waterboarding is “torture”. Yes, I do. But the question for a legal proceeding is whether it clearly violates U.S. statute. And I haven’t seen any dispositive evidence that it does. Thus, legal opinions given by government lawyers saying that waterboarding does not violate U.S. law are not crimes and neither are the acts of waterboarding themselves. Thus, no matter how much it might shock our individual consciences, we cannot call the acts “crimes” and we cannot properly call the perpetrators and justifiers “criminals”.

Nuremberg and the other overheated references from uncompromising and intolerant far-left activists like Cernig and Greenwald are just plain non-responsive to this essential point. And their persistence in exclusively focusing on non-responsive and overheated rhetoric is an excellent demonstration of why people like them should never be allowed to control the review and reexamination process. Vindictiveness should not corrupt the more important project of fixing the damn law.

If I could be convinced that it would not be controlled by such people, I am becoming increasingly persuaded that some form of truth commission might be the best approach. Unfortunately, I still need a lot of convincing that any truth commission would not be hijacked by a partisan vendetta that would ultimately make the problem even worse by making the outcome political and backward-looking rather than legal and forward-looking. It is the very obsessiveness, hatefulness, irrationality, and extremism of the BDS brigades that is making it difficult to actually address the problems left by the Bush administration.

Of course, only later can we change the law’s text. You only draw the line for the future. Well, unless you can prove that the law was covertly changed in a way that the law says isn’t OK. I mean, I guess.

““Criminal” is a term of law, not a term of morality. Therefore, when you say that the law might not have been broken but that the acts were nonetheless criminal, you are being incoherent.”

Well, the semantics I happily defer to anyone.

“But holding individuals responsible in a formal investigation and proceeding requires using the LAW, not some subjective standard of morality.”

Why of course. If it turns out that the law is in the way at a point in the investigation, it can not be changed in order to retroactively criminalize acts that for some reason were “OK” when they were committed. But until that point, it’s good for my sanity to assume that the law actually makes sense. I can’t punish anyone on the basis of my objective morality just because I haven’t bothered to make sure the law reflects it. I want people brought down hard if possible, but there is no satisfaction if shortcuts or sheer malpractice is involved.

“And at the point that you are willing to assert that something is “criminal” and punishable as “criminal” EVEN IF it did not break the law”

I keep on giving people the wrong impression – I don’t want anyone punished or prosecuted with anything other than clinical law. That would shame everything and everyone involved, including the important cause. If the law says they can get away with what they’ve done, then the only thing they will have to deal with is their consciences.

“Criminal” is a term of law, not a term of morality. Therefore, when you say that the law might not have been broken but that the acts were nonetheless criminal, you are being incoherent.

If you wanted to argue that the best response to a finding that the law was not broken is to improve the law, then you might recall that I have already agreed with you. But holding individuals responsible in a formal investigation and proceeding requires using the LAW, not some subjective standard of morality. That is the only thing that distinguishes rule of law from the rule of the mob. And at the point that you are willing to assert that something is “criminal” and punishable as “criminal” EVEN IF it did not break the law, I conclude that you actually ARE representing a lynch mob mentality, regardless of how you try to obfuscate it with self-righteous and prideful rhetoric.

This is a true statement, but it proves you wrong instead of backing your assertion, Garland. If the law did not explicitly criminalize the actions that were taken, then we can all potentially determine that we think the law needs to be amended- but what has to be obeyed is the law as it was written at the time the acts were committed, not the law as we think it should have been written.

No, “we” just assume there are guilty people. Then, we have the completely logical assessment that responsibility and accountability should flow upwards, that is, towards Cheney. It’s just that reality has a “liberal” bias this time, in the sense that this sick stuff didn’t went down under a democrat administration. Even if everybody in “the left” somehow acted according to the strawman role you’ve described, that still doesn’t mean it will change anything. The pursuit of justice has an extensive rule-book, and if you don’t play according to the rules then you can’t imprison anybody anyway.

“unless of course you have already been through the numerous hearings and presumed trials yet to come.”

When I say “under the previous administration”, I mean in the sense that it was a chronological circumstance. Someone was in charge *during* the torture – happened to be republicans. “Under” isn’t necessarily in the administrative/chain of command sense.

“The left throws around terms like “war criminals” as conclusive labels applied to various Bush administration officials, not hypothetical claims that have yet to be determined as to validity.”

War crimes happened – war criminals must therefore exist. In the same sense that provenly murdered people haven’t murdered themselves. As to who is a war criminal – I find it extremely probable that Cheney is one, but that doesn’t mean I’ll be able to convince extremely educated judges about this unless I bring out an impeccable file about 235000 pages long. “The left” hasn’t done anything anymore than “the right” has done anything. If “the left” has applied labels to Bush administrations prematurely, then “the right” has prematurely decided that proceedings shouldn’t happen and even if they did bush officials would not be found responsible for war crimes. Yawn.

“And you and others, Garland, have persistently refused to engage with the issues of ambiguity in the U.S. code implementing the UNCAT that make it possible that no crime was even committed.”

That’s because torture is unambiguously wrong and should cause punishments. If the law doesn’t happen to reflect that, then “we” will have at least done our best to pursue an impeccable cause. War crimes happened, and if not in the legal sense, then at least in the real sense. Who cares if “we” can’t send anybody to jail? The investigation must go as far as it can, to increase the chances that justice is meted out and that this won’t happen again.

“In short, you presume guilt and call for a lynch mob mentality to carry out your presumptions.”

“We” don’t want lynching and “we” are not a mob nor do “we” have the capacity or goals of a mob. Call me on whatever you want, my mind won’t respond to scary words and I’m proud of that.

“You jump directly to demanding that “those involved” be “prosecuted” without regard to establishing first that a crime was actually committed.”

Course it was. If it turns out that a crime wasn’t committed in the judicial sense then so be it. This must be taken as far as it can and then no further. We must assume that a crime has indeed happened in the legal sense – because that assumption cannot lead to anyone judicially declared “innocent” still getting punished anyway. It’s unnecessary to act as if a crime isn’t a crime because of the *possibility* that the text of law doesn’t reflect moral truth – if the buck stops prematurely then it stops, no matter a perfectly sane assumption that those responsible for war crimes should get punished. Some text can make a person legally safe from just repercussions – that person can still be a criminal.

In a sane world, those involved can indeed be prosecuted. It’s best to assume that the world is sane until some text declares that this isn’t the case. “We”‘re not going to burn the law book if it makes prosecution of war crimes impossible, but the crime is undeniable even if it is rendered “not a crime” by an official text that is legally binding but morally insane.

“You PRESUME that the acts in question were criminal.”

That’s because they were. If the law says this isn’t the case, then the law is of course wrong but it must still be obeyed. The law isn’t intrinsically moral.

In short, you presume guilt and call for a lynch mob mentality to carry out your presumptions. And I will continue to call you on it. In fact, here is your direct quotation on the subject:

I would take that as a horrible loss that could only be ameliorated if that administration had been prosecuted fairly and unhesitatingly by the next administration, thus punishing those involved and teaching “my party” a lesson that would regain its credibility and honor

You jump directly to demanding that “those involved” be “prosecuted” without regard to establishing first that a crime was actually committed. You PRESUME that the acts in question were criminal. And then you jump right past that silly guilt vs innocence to talk directly about “punishing those involved” and “teaching ‘my party’ a lesson”.

A more textbook case of presuming guilt would be hard to imagine.

I think Obama was worried he’d be under fire from Republicans if it looked like things were going to start getting political, say, if a former fellow Congressman or two got involved.