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Why does it take four years for the real bad apple report to come out? The rot is now fully confirmed to have come from the top of the tree. Cheney & Rumsfeld (the only Nixonites to get away), Tenet, Powell, Rice and Ashcroft were authorizing torture on a case by case basis. And only Ashcroft put forth the concern that it was inappropriate to do so.

Were these the decisions of war criminals? An unbiased, objective court in most of the world would likely find that they were in violation of international law. But who among the nations is strong enough to carry off a successful prosecution with the mighty US government using its diplomatic and economic influence to block such an occurrence? It’s highly unlikely to occur, rendering the question potentially moot.

Jack Balkin lays out a solid case against it happening inside or outside our borders. I’d add another point. Were I a defendant in such a proceeding inside the US, I’d demand a jury trial and emphasize the point that the big concern - that Al Qaida was poised to drop another shoe on us - drove the decisionmaking and push for jury nullification, where jurors decide the law could be overridden due to the fearful circumstances.

But as Balkin notes, the Military Commissions Act of 2006 likely exempts the principals from US prosecution, as Congress approved that by a substantial margin. As it seems Bush steered clear of direct participation, he could also issue a pre-emptive pardon on his way out of the Oval Office. A new administration would have to undo a lot, while gaining Supreme Court approval, just to clear the field of legal mines before such an effort could even begin.

Face it: Congress blew that vote, including the minority Democrats. Progressive bloggers howled about it back then, trying to convince Democrats to vote ‘nay’, but it was to no avail. As Balkin further notes, the political will to push the issue would defy basic political logic.

I’m not convinced this would be a result of Balkin’s point “that a later Justice Department would not prosecute people who reasonably relied on legal advice from a previous Justice Department”, because, after all, the Attorney General taking part in the lawbreaking hedged a bit:

Then-Attorney General Ashcroft was troubled by the discussions. He agreed with the general policy decision to allow aggressive tactics and had repeatedly advised that they were legal. But he argued that senior White House advisers should not be involved in the grim details of interrogations, sources said.

According to a top official, Ashcroft asked aloud after one meeting: “Why are we talking about this in the White House? History will not judge this kindly.”

The Principals also approved interrogations that combined different methods, pushing the limits of international law and even the Justice Department’s own legal approval in the 2002 memo, sources told ABC News.

Ashcroft’s concern about the historical record demonstrates a clear concern that people would judge them to be wrong. That provides an opning that undercuts the reigning legal memo and his prior assertions about the torture’s legality.

That the administration claims those actions produced useful intelligence can easily be discredited as they’d also have to prove that such evidence could not have been obtained via standard interrogation techniques. Which is impossible.

At best, we can hope some country will make a half-assed attempt at a prosecution, at least arresting a principal traveling abroad, just to provoke embarrassment and discomfort temporarily. The war criminals deserve far worse, especially those advancing trumped up evidence to provide a thin veneer of justification for what was clearly an illegal war.

Shy of any hope for justice to reign, however, this leaked information likely has some useful side effects. Consider:

1) It likely kills any chance that Colin Powell will ever be considered presidential material.

2) Likewise Condi Rice, thus squelching any chance she’ll be McCain’s VP as well.

3) George Tenet’s Medal of Honor will always bear an asterisk by its mention.

And (4) it provides further evidence for historians that Cheney and Rumsfeld drove foreign policy while Bush played Charlie McCarthy whenever Cheney’s hand moved. Maybe his distance was deliberate to maintain the plausible deniability defense. But Cheney was the principal with the ultimate veto power who could overrule a unanimous vote of the other participants. Either way, Bush was not - as he’s asserted before - “the decider”. All his major personnel were making criminal choices, so he was merely incompetent, but still responsible for the corruption of his underlings, just as Harding was with the Teapot Dome Scandal.

In our democratic society, a court conviction provides a chance to punish the criminals. But the court of public opinion can still make a conviction within the realm of common sense. There may be no cells and fines involved, but the stigma hanging over the Bush administration and its overseer - the Republican Congress - can surely result in punishment at the ballot box.

Every Democrat running for Congress or the Presidency should make that case repeatedly to the 100 million plus jurors who’ll render a decision next November. Only 50% plus one is necessary to gain an across-the-board conviction.

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