While I rather like the kicker for this piece — “Hit me Bybee, one more time” — Jonathan Chait ends up taking back a good bit of his “prosecute ’em” argument with this paragraph:
Now, exceptions can be made, and the question of whom to prosecute is tricky. It seems unfair to prosecute CIA agents who tortured, as they had been specifically advised that techniques like waterboarding were legal. It’s likewise tricky to prosecute the Bush administration lawyers who wrote torture-authorizing memos. Administration defenders assert that those lawyers were “acting in good faith.” And, yes, they were making a good-faith effort to stop terrorism, but to suggest that they were making a good-faith effort to interpret the law insults their intelligence and ours. A recent Washington Post story leaves the impression that torture-memo author Jay Bybee, now a federal judge, realized the tendentiousness of his memos, which said waterboarding isn’t torture (and therefore is legal) because it does not inflict “severe physical or mental pain or suffering.”
It seems to me that it is in fact difficult to prove that someone knew they were giving legal advice in bad faith. And while I agree with Chait about the rule of law and torture being worse than being fellated by a White House intern, Bill Clinton wasn’t being fellated in order to stop a sequel to the 9/11 attacks. In my view, it would have to be pretty clear that the people acted in bad faith or were knowingly trying to justify illegal actions before they could be prosecuted.
That said, Chait makes a number of good points, particularly this:
Finally, yes, we can imagine ticking-time-bomb situations where regular interrogation methods work too slowly and extreme measures might prove helpful. But this premise bears the same relationship to the question of legalizing torture as the morality of stealing a loaf of bread to feed your starving family does to the question of legalizing theft.
The trouble with actually legalizing torture in these cases is that everything will be defended as a ticking-time-bomb scenario. It is better to deal with such exceptions to the rule through prosecutorial discretion and the pardon power.