One argument against prosecuting the waterboarders is that if the new government prosecutes the old government for its policy decisions, the Republic is doomed. The principle is sound, but its application to the question at hand – whether those who waterboarded in our name should be prosecuted – is flawed.

Whether to torture is a policy decision. That policy decision has been answered in the negative many times in the statutes we’ve passed and the treaties we’ve joined. Even the DOJ torture memos don’t question that policy decision; rather they make legal claims – that certain conduct is not torture – in light of that policy decision.

Once we’ve decided that America doesn’t torture people, what constitutes torture is not a policy decision. It is, instead, a matter of applying the law to the facts. Whether we consider something torture might change with increasing human knowledge, but it can’t change with the government of the day. If stress positions were torture in 1956, they’re torture now. If standing sleep deprivation was torture in the Soviet Union, it is torture here. If waterboarding was torture in 1972, it’s torture now. And if waterboarding is torture now, it was torture in 2002.

If the question at hand – whether waterboarding is torture – is treated as a policy question, then waterboarding is only torture for as long as this administration is in charge. After that, all bets are off, and waterboarding may not be torture again. To pretend that it is a policy decision is to ensure that it will happen again.

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Asides (which will probably draw more enraged comments than the main point):

Is Eric Holder correct that waterboarding is torture? A former SERE instructor says, “Waterboarding is Torture. Period.” John McCain, a victim of waterboarding, says, “Waterboarding is torture, period.” The FBI doesn’t waterboard. The Army doesn’t waterboard. Even National Review Contributing Editor Andrew C. McCarthy (not an expert, but a supporter of waterboarding) concedes that “There shouldn’t be much debate that subjecting someone to it repeatedly would cause the type of mental anguish required for torture.”

Is waterboarding effective? Everything that I’ve read says that if you waterboard someone he’ll tell you whatever he thinks you want to hear, whether it’s true or not, just to keep you from doing it again. John Kiriakou claims that Zubaydah cracked after 38 seconds of waterboarding, and told interrogators everything. But then Zubaydah was waterboarded 82 more times. Khalid Sheikh Mohammed was waterboarded 183 times in a month – more than three times the maximum approved in Steven Bradbury’s May 10, 2005 memo. (Does that qualify as “repeated”, Mr. McCarthy?)

If you think that we should torture people, including KSM and Al Zubaydah, use the process to change the law and abrogate the treaties. As long as torture is illegal, Bennett’s Law of Rules applies: If you can’t pay the penalty proudly, you weren’t justified in breaking the rule.