OK. I'm going to weigh in here.
This is a real problem for both the military and the former administration and if you want my opinion (and I *know* you all have just been waiting with bated breath to listen to me bloviate!) the blame rests squarely with Congress and the President. Over and over Congress has been asked to tighten up the definitions. And over and over they've chosen to punt the ball. Personally I think it not unwise to leave some latitude in the statute (as Samantha notes). But that very latitude, in our overly litigious society, provides no cover against domestic political expediency or lawfare by much vaunted "international community".
At this point, Mr. I'm Going to Heal the Oceans needs to step in and say "We're done here. I'm not going to prosecute anyone for construing an ambiguous statute differently than I would have."
And then he needs to have the self control to STFU and not talk about it any more. It's like dealing with kids: "Sorry - Mom just put her foot down and your opinion, while interesting, has just been rendered utterly irrelevant" :p
What is "prolonged mental pain/suffering"? As soon as they stuck "mental" in there, we had a problem because mental injuries are not cut and dried. You can't see them. Some folks can withstand far more rough treatment. Others who may be weaker vessels might be irreparably harmed by even a single bout of waterboarding. Unkind folk like myself might argue that anyone picked up in a terrorist training camp was perhaps not that mentally stable to begin with :)
But under even the weasel-worded current definition, all a plaintiff has to do is allege that he's suffering ongoing mental anguish as a result of interrogation. That's such a preposterously low bar that all he needs to do is sway a jury into feeling sorry for him and he's home free.
I don't think Ry is making an unreasonable argument here. We might not like where it takes us, but the argument itself isn't a bad one. We have military people testifying that they think waterboarding is torture, so to argue that under no circumstances can it be considered torture is hard. There is a legitimate difference of opinion here, and it's not only folks with no experience who wonder if this rises to the legal definition.
Like Grimmy - I don't believe that (carefully applied) waterboarding ought to fall under the strict definition of torture. Like Grimmy I am bothered - too mild a word - by the prospect of military personnel being hauled into court for doing their jobs under difficult and dangerous situations we can't adequately understand from the comfy chair. But like Ry, I understand that context matters. If the danged law says that mental anguish is enough, just being incarcerated is probably torture.
When Congress writes weaselly laws with too much wiggle room in them, people have to make judgment calls on the spot: does this meet the legal definition of torture? The last administration made those hard calls. Despite the frothing on the Left, they were not *legally* indefensible by any rational yardstick. What the Left is having trouble with is the concept that a very defensible decision making process may have what they consider to be *indefensible* results.
My POV on this is, "This is precisely the kind of situation in which the value of having a Chief Executive becomes apparent." Because even if, under the law, one decides that the lawyers who drafted this decision stretched the law to its breaking point, it serves no one to second guess (much less criminalize) what was essentially a judgment call.
This is where the President is supposed to step in and say, "OK. Fine. I get it. You've decided to draw a line in the sand here. But that line only extends forward in time. We're not going backwards to retroactively apply this to actions long past, because if we do that no one will have the guts to make hard decisions. A** covering will replace reason."
"We're done here."
I have differed with many in the military community b/c I think that once a serious, credible allegation is made of wartime misconduct, we HAVE to investigate in order to let the public know that the rule of law will not be selectively applied. When Pantano was accused, I hated the idea but applauded the fact that the incident was investigated and the legal process was followed. Sometimes, the individual suffers unfairly from this. But our system of laws, checks and balances, and accountability is strengthened. I grew up in a Navy where when bad things happened, the skipper was nearly ALWAYS blamed and nearly ALWAYS relieved of command. Careers were ended when arguably it was an underling who was at fault and the command did nothing wrong. But there was a principle there, and it was that someone had to pay for failures and that no one was above being held accountable.
How far we have come from that mentality. Now it's as though the difficult weighing test between society's welfare and individual fairness tilts completely to the individual. I'm not sure that is a good thing.
That said, this is a different situation. The government came down on one side of the torture issue, and it is only fair to hold the folks on the pointy end of the spear to what the civilian leadership AT THE TIME said was kosher. Unlike many, I think reasonable people can disagree on whether waterboarding is "torture". It's not a bright line issue, and in the end the military operates under the Constitution and is subordinate to our very civilian representatives. I don't think it's a great precedent for the military to tell the civilian leadership, "Hey -- talk to the hand".
The initial failure is on Congress for ducking their responsibility and on Obama for waffling (saying on the one hand that the pointy spear folks won't be prosecuted but then apologizing all over the place for their "criminal" behavior). He has sowed doubt and undermined the rule of law by stating that he isn't going to enforce "the law" as he clearly sees it and that's the worst possible example because it undermines the rule of law while failing to provide any protection for the folks who defend the Constitution with their lives. He needs to come down on one side or the other, and I think we all know that's something he will never do.
After all, when you take a stand you can be second-guessed :p
What he should have done is refuse to state his opinion of the legality of bygone events, state that there would be no second guessing, and then state that the policy going forward will be x, y, or z.
Oh, and lean on Congress to tighten up the law or shut up. Yeah. Like any of those things are going to happen...
*sigh*