Better late than never, the New York Times this week announced it would finally use the term "torture" to refer to the set of Bush administration practices euphemistically referred to as "enhanced interrogation techniques." But in ending one disservice to its readers, Times executive editor Dean Baquet performed another. By now proclaiming "the debate is focused less on whether the methods violated a statute or treaty provision and more on whether they worked," the New York Times is only making it more likely that the United States will torture again.
Others, including Andrew Sullivan and Emptywheel, have already taken the Times to task for its comical claims that "over time, the landscape has shifted" and "far more is now understood" about waterboarding and other abuses. But more disconcerting than the paper's feeble defense of past failures is its guarantee of future performance:

Meanwhile, the Justice Department, under both the Bush and Obama administrations, has made clear that it will not prosecute in connection with the interrogation program. The result is that today, the debate is focused less on whether the methods violated a statute or treaty provision and more on whether they worked - that is, whether they generated useful information that the government could not otherwise have obtained from prisoners. In that context, the disputed legal meaning of the word "torture" is secondary to the common meaning: the intentional infliction of pain to make someone talk. [Emphasis mine.]

The sin here is double. Whether or not waterboarding and other interrogation methods worked to produce actionable intelligence (which the upcoming Senate Intelligence Committee report will conclude they did not) is basically irrelevant if they were illegal. The President must follow U.S. and international law, full stop. Both not only define actions undertaken under the Bush program of detainee interrogation as torture, but mandate that its architects and perpetrators must be prosecuted. "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, Article 2 of the Torture Convention explains," may be invoked as a justification of torture." And as Majorie Cohn documented in October 2012:

The US has a legal duty to prosecute those responsible for torture and abuse, or extradite them to countries where they will be prosecuted. When we ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), we promised to prosecute or extradite those who commit, or are complicit in the commission, of torture. The Geneva Conventions also mandate that we prosecute or extradite those who commit, or are complicit in the commission of, torture.

To put it another way, the supposed efficacy of torture can never trump its criminality. And political expediency can never excuse failure to prosecute it. That's why President Obama's Attorney General Eric Holder, who like his boss repeatedly declared "waterboarding is torture," cannot simply proclaim as he did in 2009, "We don't want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over." As George Washington University Professor Jonathan Turley, certainly no fan of Barack Obama's uses of executive power, put it in 2010:

"Because it would have been politically unpopular to prosecute people for torture, the Obama Administration has allowed officials to downgrade torture from a war crime to a talking point."

And forty years after Richard Nixon resigned, no American should accept his talking point that "when the President does it, that means it is not illegal." Nevertheless, former National Security Adviser and Secretary of State Condoleezza Rice came up with a defense worthy of Tricky Dick. As she explained to a group of her angry students at Stanford University:

"The United States was told, we were told, nothing that violates our obligations under the Convention Against Torture, and so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture."

For its part, the New York Times will now equate "torture" with opening a can of whoop ass on terror suspects. Apparently, the only public debate that matters is whether that ass-whooping "worked." But that's not what our laws and treaty commitments require. If, as President Obama so casually admits, "we tortured some folks," then we have to prosecute some folks, too.