We always knew Al Qaeda was a plague. Now they appear to have the plague and it may not be an accident.

“It is flexible – designed for give and take; designed to stand up and be workable over time.”

And I quoted you thus:

“The law is flexible — designed for give and take; designed to stand up and be workable over time.”

Your “It” referred to “the Constitution,” not “the law.”

So, I quoted you as saying, ““The law is flexible — designed for give and take; designed to stand up and be workable over time.”

When what you really said (substituting the definite proper noun for the indefinite article):

“The Constitution is flexible — designed for give and take; designed to stand up and be workable over time.”

The rest of the quote is as you wrote it, but making it look like you were talking about the law when you were actually talking about the Constitution was terribly misleading and distorted the entire meaning of what you said.

I offer my sincerest apologies.

Our Constitution is obviously designed to promote tension between the three branches. This flexibility, this give and take, are part of the reason it has stood the test of time.

I didn’t say the law is flexible. That was not part of my argument. However, since the subject is raised, and although I’m not a lawyer: it’s my impression that most lawyers believe the law is flexible. Consider the police officer making a continuous series of decisions in the field. Consider prosecutorial discretion; judicial discretion; jury nullification, appeals courts.

1) given the Constitutionally designed gray area tension between Executive and Legislative;
2) given the unresolved gray area question of whether waterboarding is torture;
3) given the resulting low odds of conviction;
4) given the political damage – both to Obama’s agenda and to Executive power – which prosecution could create;
therefore
5) does prosecution make sense?

Posner summarizes his argument in his two concluding paragraphs – which, taken in their entirety, illustrate that Posner’s argument is only partly about inconvenience:

Holder himself can’t dispute the central premise of the Bush DOJ’s war-on-terror memos; at best, he can say that (in his words) “There’s always the tension in trying to decide where that balance is struck” when the president’s and Congress’ constitutional powers conflict, and that he would have struck it differently. A jury will convict on that basis?

Obama has no reason to “rule out” ordering criminal investigations and prosecutions of Bush administration officials. After all, some people may well have gone beyond the authority given to them and would be prosecuted even by the Bush administration. And a long and inconclusive investigation might be the best way to make the issue go away. But Obama has no legal obligation to prosecute and has overwhelmingly strong political reasons to make this issue die: not just to avoid short-term disruption of his political agenda, but to avoid the long-term damage to his own power as president. Will Holder try to stand in his way? Nothing in the transcript indicates that this is likely.

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Separately, I argue that America’s Founders designed politics into the Constitution. They may have considered politics a dirty business, yet they also considered politics a useful tool for balancing and moderating government. The Founders intended that Barack take politics into consideration (as one consideration amongst many considerations) when making a decision about prosecuting waterboarding. The Founders believed it moral and wise that politics be a factor.

Though it’s constantly possible that a POTUS – in making a decision – might immorally overvalue politics, nevertheless: there is nothing inherently immoral about politics.

That my opinion is only opinion, and may easily be disagreed with and argued against, is part of the greatness of how our Constitution is designed. It is flexible – designed for give and take; designed to stand up and be workable over time.