Does this mean that the discretion for torture as discussed here is essentially the same as everything else?

Actually, I picture you as a bright woman, but maybe that is more info than you would like.

The fault is not necessarily yours. I could very well be completely full of shit.

(but I don't think so) ;)

It seems to me that cases in which it was decided not to prosecute would come more under the heading of competency to stand trial etc. For example in England Pinochet was released because he was deemed to be mentally incompetent to stand trial.

Bush would perhaps have an argument here. He could say that someone unknown to him had laced his coca-cola with rum, thus making his innocuous soda into a Cuba Libre that had rendered him unable to function in his normal brilliant fashion as a Decider.

Or supposing Hamas took a prominent American like Mrs. Clinton hostage. Perhaps the DOJ would swap Bush out for her instead of prosecuting him.

To tell the truth, I'm not even sure if this has anything to do with what y'all are talking about, but, I've just begun reading some of the Marty Lederman posts which Arne linked to above and on November 21, 2005, he wrote:

For now, however, I'd like to focus only on the question whether these techniques are federal crimes under two statutes: The federal anti-torture law (18 U.S.C. 2340A), and the federal assault statute (18 U.S.C. 113). […]

[…] How could OLC possibly have concluded that waterboarding and "cold cell" are not necessarily torture? Well, we won't know for certain unless and until we see OLC's specific legal analysis. But surely, a large part of the explanation must be that the Senate (at the urging of the first President Bush) insisted upon adopting extremely restrictive readings of certain key terms of the Convention Against Torture as a condition of its ratification of that treaty -- restrictive terms that Congress itself adopted in the torture statute.

http://balkin.blogspot.com/2005/11/cia-enhanced-interrogation-techniques.html

I'm asking seriously here. Is there sufficient documentation that prosecution could be conducted at this point without resorting to lengthy discovery?

Is prosecution required for any federal crime?

Prosecutorial discretion is pretty broad. That said, while I do not know how it works on a federal level, at the state level if that discretion is abused so seriously that the People or those in the system are appalled, the state's AG can intervene and prosecute (or halt it), taking control from the local prosecutor.

But I am not certain how this works at the federal level.

Reinforces my notion that the process that will produce some version of justice -- rather than avoidance of it -- is for there to be a refusal to investigate or prosecute (which is actually where we are today and for however much longer Congress chooses to dilly-dally and the DoJ simply won't do it, as has been the case throughout the Bush regime.)

I'm surprised that Mukasey's adamant refusal to investigate hasn't already triggered international efforts to investigate and bring the culprits to justice. But of course there's a lot of complicity overseas as well as at home.

The good thing is that Obama's theme throughout his campaign could be interpreted as redemption, and there are only a few paths toward it, one of which most definitely is bringing justice to those who have been wronged (especially through torture, murder and baseless captivity) by the United States of America.

Doing it, however it is done, is a huge step the nation has rarely been able to take. We'll see if it will happen now.

Yes, it's relevant.

A more detailed explanation of the "restrictive reading of the CAT" can be found in the written presentation by the United States to the Committee against Torture;

"Thus, when the United States Department of State transmitted the CAT in May 1988 to the Senate for its advice and consent to ratification, it explained that “[the CAT] seeks to define ‘torture’ in a relatively limited fashion, corresponding to the common understanding of torture as an extreme practice which is universally condemned.” It also noted that “‘torture’ is thus to be distinguished from lesser forms of cruel, inhuman or degrading treatment or punishment, which are to be deplored and prevented, but are not so universally and categorically condemned as to warrant the severe legal consequences that the Convention provides in the case of torture.” It further explained that “the requirement that torture be an extreme form of cruel and inhuman treatment is expressed in Article 16, which refers to ‘other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture’ [and that] the negotiating history indicates that the [italicized] portion of this description was adopted in order to emphasize that torture is at the extreme end of cruel, inhuman and degrading treatment or punishment and that Article 1 should be construed with this in mind.” (Emphasis added in the original.) This analysis was subsequently adopted by the Senate in its report recommending that the Senate consent to ratification of the CAT."

Let's forget about prosecutions for a minute.

And the technical and lawyerly conversations here go beyond my grasp.

Doesn't there have to an investigation as to who was responsible for what and why when these acts were done?

It seems to me that an investigation is required, followed by prosecution if it determines that war crimes have been committed. Can't there be some kind of method to determine what actually happened?

The torture chambers and the admissions by the high level administration officials indicate there is evidence of war crimes. Simply asked, why aren't those facts enough to conclude that an investigation is required?

If everything that was done has been publicly acknowledged then a determination by Holder and Obama should be made. The republicans obviously don't want to open a can of worms and they are fighting it, but can Obama just ignore the crimes and say "let's be friends."

It annoys me that Obama wants to look forward without even a glance at the past. But still, why would he thwart an investigation? What is preventing an investigation?

Why am I so confused? I'm trying to figure that out.

What justification is there to not have an investigation and what is preventing it?