But as the arguments about torture, rendition, the status of detainees at Guantanamo, “warrantless domestic wiretapping,” etc. have become ever more heated, a lot of Bush critics have come to assume that the legal case underlying their arguments is a solid one. It’s not. At best, the legal case that might be brought is fraught with ambiguity, as it is in the case of torture.

At the center of the argument over the legality of the controversial “enhanced interrogation” is the definition of “torture” in the federal code — a government act “specifically intended to inflict severe physical or mental pain or suffering.” John Yoo relied on that language to contruct the now famous or infamous guideline to the effect to be torture, an act had to be the “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” When The DOJ withdrew Yoo’s memo, it substituted this standard: an act causing “intense, lasting and heinous agony.”

The point is that even the definition of “torture” and its application to one or another CIA or military interrogation is by no means open and shut.

Moreover, it would not be easy for a federal court to sort out the arguments that could be made derived from the President’s “war power,” as Lincoln called it. In this case, that power, whatever it may be, was reinforced by Congressional resolutions. Certainly, anyone charged with the crime of torturing an al Qaeda detainee would raise a number of strong arguments along these lines.

Next, there is the Military Commissions Act of 2006, which authorized military tribunals, the holding of enemy combatants indefinitely without judicial review under habeus corpus, and the admission of coerced testimony in the tribunals, and effectively barred prosecution of policy makers, CIA interogators and soldiers under US law. Since its enactment, the Supreme Court has ruled that detainees are entitled to habeus protection and forced an expanded scope of due process for them. It has not tossed out the commissions or the government’s power to hold them indefinitely or dealt at all with the issue of prosecuting officials. I doubt that it would do so, if it ever reached those issues. In any case, the Act provides a heckeva good argument for anyone charged with crimes related to detainee treatment. This was not a rogue executive but an act of Congress.

Many critics toss international law into the mix — particularly conventions related to treatment of detainees and the commission of “war crimes.” While this makes for heated sicussions, no one should assume anything about what acts would actually be regarded as “war crimes” if and when they actually were presented to any dispassionate court. The concept is murky and the application messy.

Finally, if anyone were ever charged and went to trial on the crime of torturing al Qaeda detainees, the facts of the specific cases, not just the law, would come into play. It’s one thing to generalize about what might be a crime, it’s quite another to apply the law to one set of circumstances and level a convincing charge. If you get that far, then you must face the prospect of persuading all 12 members of a jury that the indicted parties are guilty.

I submit that the likelihood or anyone being successfully prosecuted for torture in these matters is essentially zero. The only effect of pursuing such cases would be to close a political battle royal that would divide the nation right down the middle and undermine Obama fatally.

With respect to some other issues that have been raised, the legal case is even less well grounded. In the matter of extraordinary rendition, it’s clear that US law does not prohibit it, and the President’s authority to order it is on solid ground (as it was when Clinton did). The fact that some foreign governments and human rights watchdogs don’t like it doesn’t alter that.

As to “warrantless domestic wiretapping,” the recent ruling of the FISA Court strengthens the case for the actons taken in the past, and going forward, I suspect Obama is going to want to keep those particular intelligence tools.

Ok, yeah. This is a pretty sophisticated board, I don’t think anyone here is really ever going to go for that one. Are you saying then then that even though the government can commit illegal actions it is impractical to treat them as criminal?

You’re not an idiot and I’m sure you’re not going to fall for that trap either.

But hopefully you see where I’m going with this. The thing that I’m trying to ask you – that I think you actually should try to answer at least to yourself – is what would have had to have happened for you to support a criminal investigation?

I would much rather argue about the specifics of what you think merits action than I would about vague ideas of what ‘is helpful’ or who’s ‘self-serving’.

It’s easy for prosecutors bearing the awesome power of the US Government to bring charges, even to secure grand jury indictments (in the famous words of a former NY State Chief Judge, “any prosecutor can get a grand jury to indict a ham sandwich”).

Channeling what are, in their essence, disagreements about policies, however profound or emotionally held, into criminal prosecutions can only super-charge political animosities and stir even more sharp divisions among citizens and voters, as well as destroy morale withing the affected agencies.

There is a point here of overriding consequence: we can easily survive and recover from periods of intense and destructive policy disputes. Whenever in our history such disputes have arisen, one or both sides invariably have called the other side’s policies either illegal or unconstitutional or both. Once in a while, these disputes between the two “political” branches are resolved by the courts, and less often, they lead to impeachment charges or threats of impeachment. However, using the criminal justice system to satisfy one side or the other is bound to lead to nothing but another round of bitter disputes.

I mean for god’s sake, torture? You really think we can be better served by not going after those who sanctioned torture? The other stuff I was and am still enraged by and think is certainly worthy of prosecution but that was mostly based in incompetence. Government sanctioning of torture however is downright malicious ignorant and criminal, I think it’s down-right immoral to turn a blind eye.

Pragmatism is important, but there either is a limit to it or there isn’t and it either has been exceeded or it hasn’t. I suggest that you really ponder where you fall on those two questions.

Oh, and as far as bringing the country together. I think most people (congress included) feel the same way. It’s a good thing too, because most of congress is 100% innocent in this affair. As long as you make it absolutely clear that this prosecutions will be on this issue only most will be more than happy to throw Bush and Co under the bus.

Krugman is prominent, but this is only one issue. The left is trying to avoid two extremes. One is the Circular Firing Squad, where we rip eachother to shreds over silly things. But we don’t wanna be yes-men either.

Right now the Obama administration isn’t doing anything. He’s talking to people, courting various groups, sending signals, etc. But nobody will care about any of that shit two months from now. Until he gets something through Congress he’ll keep the benefit of the doubt. Some media folk will go after him on issues the rest of us don’t particularly care about, or issues where most of us think he can’t do any actual good — f. e. Bush may have committed crimes, but he’s got fancy lawyers, sophisticated legal BS, and he appointed most of the Judges so he charging him would be a huge waste of time — to prove that they won’t b yes-men. The rest of us will seriously consider their arguments, and then give Obama the benefit of the doubt until he actually does something that matters.