Thanks for posting those articles. I followed up on the military.com article you posted. Quote:-

"It's extremely ineffective, and it's counterproductive to what we're trying to accomplish," he told reporters. "When we torture somebody, it hardens their resolve," Alexander explained. "The information that you get is unreliable ... And even if you do get reliable information, you're able to stop a terrorist attack, Al-Qaeda's then going to use the fact that we torture people to recruit new members."

What we have here is not a blanket denial that torture never works. This whistleblower (who ought to be commended) does not discount the possibility that reliable information can be obtained. However, he also qualifies that (i) it doesn't always work because it hardens resolve, (ii) information is generally unreliable, which suggests that even if repeated torture yielded information, it would be difficult to determine truth from falsehood, and (iii) its a propoganda coup for the terrorists.

This makes torture a cost-benefit question. Torture may work, but the chances are slim and outweighed by its drawbacks. Therein lies the insidiousness of the "Ticking Time Bomb" scenario, which parameters include (i) the certainty of the loss of innoncent human life, (ii) the certainty of the bomber's guilt, and (iii) the absence of any other means to extract information within time.

The author is right - in this highly artificial scenario, even reasonable men may conclude that an exception should be made and torture allowed. The argument goes that a slim chance at saving lives is better than no chance at all, notwithstanding the moral cost of engaging in torture. But because its a highly unlikely scenario, its no basis for formulating a "Torture is OK" policy.

To repeat, either we (i) ban torture entirely and refrain from sidestepping the argument by defining torture to suit our ends (recognising all the while the potential cost of such a policy, potentially in human lives) OR (ii) we allow torture but only in demonstrable, actual "Ticking Time Bomb" cases which should be very rare and which require the highest possible level of oversight and checks/balances.

No easy choices.

You state that the "I was following orders" isnt a valid defence, and you mention the Hague. Unless I'm mistaken you are referring to the Nuremberg trials, yes?

There is a big difference. The Nuremberg trials didnt allow such a defence because the party doing the prosecuting (i.e. the Allies) were not the source of the orders. To put it another way, wouldn't you think it the height of hypocrisy for Adolf Hitler to prosecute the Auschwitz prison guards for genocide?

My point is not that the CIA torturers cannot be prosecuted. My point is that they can't be prosecuted by the US Justice Dept because the US Justice Dept, an extension of the Government that gave them the go-ahead, isn't coming before the Court with clean hands. Their legal and moral authority is compromised. It simply isn't right to say one thing and do another.

Any prosecutions ought to be conducted by someone with clean hands, such as the International Criminal Court. In such a forum, the defence that "I was only following orders", as you correctly point out, cannot hold water. However, we both know that America will never submit to the jurisdiction of the ICC. American exceptionalism at its most perverse and indefensible, but there you have it. And even if such a prosecution were to go ahead, I don't think it would be right to only go after the footsoldiers. I would want to see Rumsfield, Gonzalez, Yao and Bush up there to.

You sound like a lawyer, so I'm gonna delve into a little legalese here.

In these circumstances, don't you think that an estoppel defence would arise? Their defence lawyers will argue "It wasn't torture", the US Justice Dept will assert "Yes it is, because ...X,Y,Z...". The Defence will retort "You are estopped from claiming so, since you advised our clients that it wasn't torture, and our clients acted in reliance on that advice".

Any such prosecution would be delving into some very murky legal/moral arguments. Issues of equity and fairness become relevant. Obama, as a Law professor, must surely know this.

You correctly point out that other states are then oblgiated to conduct the proseuction if they fail to do so. Here, we fall into the sordid world of realpolitik. Who precisely would be prepared to invade US soil to capture these torturers? Who would be prepared to ask for their extradition? No one. Therein lies the bind. The only country with the means to conduct the prosecution is legally/morally estopped from doing so. Everyone else has the legal/moral locus standi to do so, but lack the power to arrest the accused.

Sad, sad, sad