Legally speaking, the U.S. Law Code is the authority, as pointed out in a previous Mahalo question:

"'torture' means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control."

What Cheney and Obama think is immaterial. The question is, was waterboarding intended to inflict severe physical or mental pain or suffering? Torture is entirely about intent. When a doctor gives you chemotherapy, it is not torture because of his intent.

I don't believe it should be possible to retroactively make something illegal. Would you consider it fair to be imprisoned for doing something that was legal at the time? So in the sense that President Obama wishes to put people on trial for something considered legal, he is wrong.
Source(s):
http://www.mahalo.com/answers/news/the-definitive-voice-on-torture-the-red-...

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