Ashcroft may be right that history will judge the administration harshly for its more explicit collusion in the use of torture but history might have to be the only judge: I don’t think those involved can be prosecuted under the definition of torture codified in the Detainee Treatment Act or the Military Commissions Act. (Which, the DoJ has recently said, made waterboarding and other techniques illegal.) It is possible that a judge could find them responsible under the statues that existed at the time… whenever that was, and whatever they were. The timeline laid out by the ABC article isn’t clear as to whether these quasi-pornigraphic meetings (with choreography! I wonder if they also played charades) were still taking place after June 2004, when Jack Goldsmith withdrew John Yoo’s August 2002 memo, which held that “torture was limited to the infliction of physical pain at a level associated with organ failure or death, thus permitting all lesser forms of physical abuse.” But, as our commenters know, the withdrawal of that memo did not stop the CIA from using techniques such as headslapping, stress positions, and waterboarding; my understanding is that withdrawal of that memo just made the legal ground the CIA was standing on a little more shaky. It does sound like the meetings took place even after photos from Abu Ghraib showed up, which doesn’t change anything about the law, it just makes the meetings seem even more gross. Not that they weren’t already pretty f’in’ gross.
Ambinder has more here, along with the hypothesis that someone will figure out how to charge administration officials with something.