It is easy now to declare that waterboarding is torture. I personally would agree, but then, I have a low tolerance for the sensation of drowning and the perception of imminent death. And, unlike the prisoners whose treatment has been questioned, I’ve had no preparation for such trials.

Fortunately, the CIA did not consult me when it needed information from al-Qaeda leader Abu Zubaida six months after the Sept. 11, 2001, attacks. Instead, the agency asked government attorneys to interpret whether 10 interrogation techniques, including waterboarding, would violate the 1994 statute prohibiting torture…

Even if Bybee and Yoo were wrong, their error doesn’t rise to the level of an ethical offense, much less a war crime. Under the Justice Department’s own standards, an ethical issue would arise only if their opinion was so obviously wrong that no reasonable lawyer could possibly reach the same conclusion. By that standard, the only obvious wrong is the continued persecution of Jay Bybee and John Yoo. The effect sanctions might have on future lawyering, meanwhile, could be chilling.