Sorry, but this does sound a bit like scholastics arguing over the number of angels accommodated on the head of a pin.
If waterboarding is torture - and it is important to remember that it was not the only technique used by Bush's goons - then it falls under all the prohibitions of international treaties and conventions.
Moreover, it falls under prohibition in America's Constitution.
You do not have to be a lawyer to understand those things.
Yes, I know the fatuous argument that these acts were kept offshore, but surely a free society's best principles do not stop applying as you cross the border. Otherwise, they may well prove meaningless, even at home, as indeed on many occasions they have in the United States over the last two and a quarter centuries.
Still further, there is the profound issue of what kind of a country you want.
The opportunity to prosecute is an opportunity to show the entire world that the country truly does not embrace these methods and attitudes.
But I very much fear that it does rather embrace, at least a very substantial part, this ugliness.
America has a very brutal history, one not well understood by many abroad and many Americans themselves. It has been no enemy of such things.
For example, waterboarding was used in the Philippines uprising against American occupation after the Spanish-American War, itself a dark chapter in greed and deception in American history.
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Some clarification.
It is unlikely that we would ever have a precise definition of torture in law, but I do not think this is necessary for a decent society.
Indeed, since human knowledge and technology keep advancing, new tortures are always going to be invented. The law cannot keep up in detail.
But the lack of absolute precision in law should not prevent our taking those to court we believe have violated a concept we all instinctively understand, and there is the spirit as well as letter of the law.
Especially when the implications of our not acting are grave for the future of a free and decent society, a goal which is the object of much of law in the first place.
A great deal of prosecution under certain laws involves judgment.
Indeed all cases going to the Supreme Court - that is, cases claiming a violation of Constitutional rights - involve judgment.
It just is not possible to write something like a Bill of Rights without a high level of generalization.
We expect high-sounding and even inspiring phrases in such documents. The judgment of the Court is an absolutely the sine qua non of making such a document meaningful (despite the opposition of Jefferson and his political gang to that concept, a crowd whose descendants remain a significant American presence).
In everyday law, we see judgment used by the police about just whom to arrest. We see judgment by judges about who receives bail. And of course we see judgment by juries and indeed superior court judges.
