Former President Bush is making the rounds on television promoting his new book. In an interview, he defended his view that waterboarding is legal because his lawyers told him that it is. (The quote is at about 0:30.)
This argument is a form of legal positivism which basically says that something is legal or illegal because the law says (or doesn't say) that it is. It ignores any kind of moral connection with the law and whether or not the law is "just". It also implies that juries do not have the power to judge the law as well as the case being tried, something that the founding fathers explicitly envisioned that our system of justice would contain. This argument, in my opinion, is dangerous. It supposes that the government is right because it says that it is right. The idea is anathema to the very basis of the U.S. Constitution.
In spite of the legal "go-ahead" Bush received, though, torture is still a legally tenuous undertaking. The memo authorizing torture written by John Yoo and Jay Bybee was declared legally defective by Bybee's successor, Jack Goldsmith, in 2003. When Goldsmith was forced from office by the administration in late 2004, his successor re-declared torture to be legal. After Bush left office, the Department of Justice again declared 18 USC 2340-2340A to be in effect and torture to be illegal. Note that during the entire Bush administration, that portion of the code was in full force. Bush simply had legal opinions stating that what he was doing was not torture. I think any honest person has to admit that waterboarding plainly falls within the definition(s) of torture contained within 2340. It's telling that only the Bush administration has attempted to get around those sections in U.S. law and even then, it could not agree completely on the legality of doing so. It's also worth noting that the Supreme Court, in Hamdan v. Rumsfeld, ruled that enemy combatants were subject to the protections of the Geneva Conventions. It would appear that the legality of torture is not tenuous after all; it's plainly illegal.
Here are some things that I think should be considered by anyone defending the use of torture: Is torture effective? If it is, why isn't it used more often or domestically? Does torture put more people in danger (via the creation of new enemies) than it protects? If so, isn't torture bad economic policy as well since it further drains resources (via the military efforts in furthering the "war on terror") that could be used for more productive means?
Finally, I'm willing to accept the possibility that one can find the use of torture morally justified in the perceived protection of others. If torture is moral and right, however, why won't those engaging in its use stand up and declare that what they did was right and allow themselves to be judged by those in whose names they supposedly acted?