Over at The Volokh Conspiracy, Eric Posner explains why Obama’s administration won’t prosecute Bush appointees and their underlings for torture:
Obama and Holder have stated that they do not want to start a war with outgoing Republicans. They have good political reasons to avoid such a battle: it would disrupt political cooperation in areas that Obama cares about.
Prosecutors prosecute when they believe that they will win. […] The waterboarders themselves will testify that they received assurances from superiors and lawyers that waterboarding is not illegal, and that they believed that waterboarding was necessary to protect the nation. The superiors, up to Bush himself, will testify that lawyers assured them that waterboarding is not illegal, and that they believed that waterboarding was necessary to protect the nation. The lawyers will testify that they honestly believed that waterboarding is not torture—it caused “pain” but not “severe pain,” in the language of the statute—and that in any event statutes need to be interpreted narrowly to avoid a conflict with the president’s commander-in-chief powers.
Posner is probably right — Obama’s main concern is going to be the economy, and prosecuting torturers will detract from that and probably be ineffective anyway.