While I'm sure this was in fact a consideration, the argument is fallacious in a number of ways, specifically that, if the operators were working under the interpretation of the laws they were given at the time, an "ex post facto" revision of the laws should not subject them to liability. I am more concerned that the goverment wishes to keep the door open for the use of this and other forms of torture in the future.
Is waterboarding torture? Unquestionably. There have been a number of recent accounts of the experience published, but, lest anyone feel that these might be "overdone" due to the current political clime, I will refer the reader of any of the numerous accounts of what happened to aircrews of the famous "Doolittle Raid" of 1942 who fell into Japanese hands. These prisoners of war were subjected to ferocious abuse at the hands of their captors, including a couple of varieties of "water torture" including the proceess with the towel tied over the face and water poured on it that we now know as "waterboarding." The first-person accounts by these genuine heros leave no doubt that it is a terrible torture. (And I'd like to see someone try to characterize the Doolittle Raiders as "phoney soldiers"--. Excuse the side rant, but in my considered opinion, Rush Limbaugh is a yellow-bellied pantywaist who is not fit to clean the dust off the boots of anyone who's joined our armed services, let alone been "downrange" in Iraq or Afghanistan. How dare he criticize when he doesn't even know which end of the rifle the round comes out of? End rant--).
Is torture useful? Most experts say no. There are other ways to gain intelligence, and I'm not adverse to "sweating" a suspect or using other stern interrogation techniques, but physical abuse tends only in the end to get the answers the interrogator wants.
The "ticking bomb" scenario is always trotted out as a justification for having torture in the toolkit. This is the Jack Bauer "24" situation where the authorities have a terrorist in custody who knows where the infernal device is, and very limited time before the catastrophy happens, killing thousands if not millions. In point of fact, this situation has never occured historically, and the chance it would occur is vanishingly small. (Note: if someone CAN cite an incident where this actually happened, I would be glad to hear of it--.) Most of the time, where bomb plots are intercepted, it is well in advance and no bombs have been placed. Otherwise, the bomb goes off. And realistically, in this situation, the suspect has every incentive to hold out. After all, he KNOWS when the disaster is set to go off, and that he only has to hang on a few more hours or minutes for the effort to succeed.
Let's, just for the sake of argument, assume this scenario has really occured. We have the "bad guy" in custody, and we know he knows the location of the stolen nuclear weapon that is set to go off in a few hours, and we have a disposal team standing by if only we know where the bomb is. All attempts at reasonable persuasion have failed, so "Jack" out of desperation, shoots "Bad Guy" in the kneecap, causing terrible pain and probably permanent crippling, and threatens to do the same to his remaining knee and elbows unless he talks. Has "Jack" violated the laws as they presently stand?
The interesting answer is, possibly not. Every US jurisdiction recognizes "affirmative defenses" to what would otherwise be criminal acts. Most people are familiar with "self-defence", in which a person is justified in using force against another which would ordinarily be criminal, if they reasonably believe that doing so is necessary to save themselves or another from harm at the hands of that other. However, Wisconsin Statutes also include the following:
"939.45 Privilege. The fact that the actor’s conduct is privi-leged, although otherwise criminal, is a defense to prosecution forany crime based on that conduct. The defense of privilege can be claimed under any of the following circumstances:
(1) When the actor’s conduct occurs under circumstances of coercion or necessity so as to be privileged under s. 939.46 or 939.47; or
(2) When the actor’s conduct is in defense of persons or property under any of the circumstances described in s. 939.48 or 939.49; or
(3) When the actor’s conduct is in good faith and is an apparently authorized and reasonable fulfillment of any duties of a public office; or
(4) When the actor’s conduct is a reasonable accomplishmentof a lawful arrest;"
Coercion is defined as:
"939.46 Coercion. (1) A threat by a person other than the actor’s coconspirator which causes the actor reasonably to believe that his or her act is the only means of preventing imminent death or great bodily harm to the actor or another and which causes him or her so to act is a defense to a prosecution for any crime based on that act, except that if the prosecution is for first−degree intentional homicide, the degree of the crime is reduced to 2nd−degree intentional homicide."
So, "Jack" has a very viable defense to any criminal charge. The "problem" with this is that "Jack" is still liable to prosecution and may be subject to having his actions "second-guessed" by a judge and jury. Is this fair?
In a word, YES! That is the way the American system is supposed to work. We give law-enforcement agents great power on the condition those powers are used responsibly, and subject to review. This is the check on the use of that power: if you can't stand up in court and say, "Yes, I did it. It was the only thing to do at the time, and if the conditions were the same I'd do it again," then you SHOULDN'T DO IT. The dangerous thing about blanket authorizations of torture or warrantless searches or whatever, is that there is no review, no oversight. The agents so empowered have the ability to torture whomever they want for whatever reason, with no accountability. This makes them no different than any dictator's thugs, and they are free to use torture as punishment and for its "in terrorem" effect on the populace instead of its limited, arguable, useful purpose.
Torture=bad. It is not only bad for the victims, it is bad for the torturers, and corrosive to the systems that employ it. Any situation that would justify its use would be so rare and so exceptional that it should be dealt with on its own as the extraordinary case it would be. That our administration continues to demand the right to torture at will, without review and without responsibility, is the sign of a deep and dangerous rot having set in.