If the slippery-slope was as much a danger as you say–We’re all “becoming damned”–then we’d be tolerating a lot worse than caterpillar torture. Don’t you think?

In contrast, one can see that the tendency is exactly the opposite of what you say–Americans today tolerate these things less and less.

The fact that we’re even having this discussion is fact enough to show that I’m right. Imagine someone back in the 1880s raising the issue some government lawyer authorizing the military to hold an in’jun chief captive in a box with a caterpillar when we were giving them syphilis and turning them into hopeless alcoholics.

Assumes facts not in evidence.

In the case at hand, history proves Volokh’s point: Americans have been willing to tolerate a lot of practices in our foreign wars that they would never even consider tolerating at home. I look down on ideas like, “We cannot create a Room 101 without becoming damned” mainly because I lack the Puritan/religious spirit that this idea comes from. I don’t believe in damnation. I think it’s a concept for babies. But, more to the point, we have been engaging in such practices for a very long time–Scheuer only mentions the administrations with which he has direct experience. For example, the so-called greatest generation, in WWII, committed atrocities that would be unthinkable today. Read With the Old Breed, by Eugene Sledge (a WWII Okinawa vet) if you don’t believe me. So, if using these techniques will “damn” us, we’ve been damned at least since WWII. If we are damned, then maybe being “damned” isn’t so bad after all: we still have the greatest standard of living in all history.

Specifically with respect to the “torture memos,” how can you seriously suggest that people be prosecuted for only thinking about certain practices–especially since reasonable people of good will can disagree as to whether these practices constitute torture. Like putting someone in a cage with a caterpillar! There’s an ancient principle in the law: “nullus vulnero nullus poena” (“no harm, no penalty,” or something like that).

They could put a webcam in his cell. A feed from the webcam ought to go to the lobby of the building where the memo in question was written. Under the monitor showing the live 24/7 broadcast of the guy in his cell, there can be a plaque.

The plaque can say “this guy wrote a memo authorizing room 101″.

It encourages the others.