The raging question of the moment is whether it is a good idea to prosecute members of the Bush administration for war crimes, crimes against humanity or just for some simple crime because they condoned the torture of three well known terrorists and in the process discovered and prevented a "second 9/11" attack on the United States.
Some have argued that wrong is wrong and must be punished. Others argue that the ends justify the means. In a nutshell, this is is the eternal conflict between the lesser and greater evil. Is it excusable to do something which is morally wrong if it prevents something much more heinous? One of the perils of being in a position of authority in government is that part of that job is to make the unpleasant decision to occasionally do something immoral in order to prevent a greater evil.
When our leaders do this they run the risk of being held accountable in the judgment of their successors or in the judgment of history. What happens, quite often, is that they are held accountable in the immediate aftermath and then exonerated by the court of history, which tends to be more dispassionate. When Harry Truman authorized the murder of thousands of innocent civilians with the atomic bomb to save the lives of even more soldiers and end World War II, he was not held accountable under the law and the debate over his culpability still rages among historians.
There are many who would like to single out top members of the Bush administration for punishment because they approved the waterboarding of three known terrorists, but the main stumbling block to doing this is that the US did not have a clear law on torture of foreign spies or terrorists and the Geneva Convention does not apply to prisoners who are not identifiable, legitimate military combatants. In fact, the Geneva Convention was specifically worded to exclude spies and saboteurs and terrorists and fifth-columnists from its protections. The US Criminal Code makes the same assumptions as the Geneva Convention about to whom restrictions on torture apply. There's a giant loophole where the Geneva Convention assumes that terrorists will be treated as criminals, not prisoners of war, but where US law and the rights guarantees of the Constitution do not apply to foreign nationals. Ultimately the problem here is not the actions of the Bush administration, which some would like to punish out of spite rather than legal justification in some sort of McCarthyesque witch hunt. The real failure is not having clear and applicable law prohibiting agents of our government from torturing those not protected by the Constitution.
That omission is hardly accidental. It has been an unstated matter of policy for decades. It creates a level of deniability which is very useful in dealing with spies, terrorists and other foreign operatives in covert situations where time is short and the stakes are high with little accountability. It was a vital protection for clandestine operatives in the cold war and that usefulness has not gone away. But it is clearly immoral and as a practice its existence relies entirely on acceptance of the idea that the ends justify the means and that a little immorality is acceptable when preventing a greater evil.
Although the Bush administration followed the same rules under which our government has operated for generations without generally being taken to task for the occasional excess, if we're just fed up with it and want to make them an example, there are three scenarios under which members of the Bush administration can be tried for authorizing torture.
The first is under international law. This could be done by retroactively applying a new definition of who is a legal combatant under the Geneva Convention, replacing the definition written into the document with a broader interpretation, which likely would not stand up in any reasonable court. Another option would be to use some other marginally applicable international law, such as the UN Convention on Torture, which does not itself ban torture, but is merely a guideline which states are supposed to follow in passing their own laws banning torture, a requirement which the US did not follow through on. To act on this would require our courts to agree that international laws are binding on US citizens and the US government, even when we have not explicitly signed off on them or enacted them in our own Congress. That means a huge surrender of US sovereignty to the international legal system, which I can't believe would be acceptable to most of those who argue against torture on the basis of individual liberty and natural rights.
The second would be under the Constitution, which would require accepting the idea that the rights embodied in the Bill of Rights are universal rights and not merely rights guaranteed to and protected for US citizens. That's a powerful moral position to take and one which civil libertarians may agree with, but I find it hard to believe that most people will accept the additional burdens which come with that admission, such as the opening of the borders and the imposition — perhaps even by force — of the authority of the Constitution outside of the borders of the US.
The third alternative is just to try them because torture is morally wrong, regardless of whether the Constitution or any US laws apply, and without giving up any sovereignty by applying international law. This could be done 'just because' or by applying a new law on torture retroactively, which would be blatantly unfair. Either of these options amounts to throwing the rule of law and any idea of due process as provided by the Constitution out the window, and trampling our own laws and shredding the Constitution because it's the "right" thing to do — at least in the heat of the moment and the spirit of righteous revenge. This option may not be so popular with anyone who has the good sense to realize that if the rules can be discarded in one righteous cause then there's no restraint on who might be the next to be the target of a witch hunt, including controversial individuals or unpopular minority groups.
Personally I'm partial to the idea of expanding the protections of the US Constitution to apply to all people in the world with no reservations. But I think it sets a terrible precedent to apply law selectively or retroactively. Under the law as it has been practiced, the actions of the Bush administration were no different than those of previous administrations and there has never been a US law or an international treaty to which the US has agreed which prohibits torture of foreign terrorists. If I were Obama and I were serious about this issue I'd make fixing that oversight the main priority and set aside the idea of a witch hunt, because once the vengeance train gets rolling it's very hard to stop.