... what I said last night about Rob's post here. I'm certainly not of the opinion that Rob is arguing in bad faith or defending the indefensible; sorry if it came across like that. It is a real question as to whether a prosecution of the agents involved is feasible, as a pragmatic matter. I regret the "nuts" remark; I meant more that the entire situation is nuts, not Rob, but I botched the sentence.
As for the substantive question, IANAL, but I do still think that there are strong reasons to presuppose that government agents who did anything like what the memos describe ought to be open to prosecution. Because, after all, it's not unreasonable to assume that government actors should know that you can't stick someone in a box and drop bugs on them. If they actually did this then they should be prosecuted even if somebody above them wrote a memo saying it's OK to do that.
To put this another way, I can't imagine a cop ever thinking it was legal to put, say, a mob guy in a box and drop bugs on them, even though the cop may know the mob guy may, well, know of a ticking bomb somewhere. I could be wrong but I'm pretty sure even if the cop in the situation got a DA to say he could get away with it, he'd still be screwed, because a cop just ought to know better. Hence on this immediate point, the best possible defense of the agents who would be immediately responsible for any bug-dropping would be the "just following orders" defense, which I had imagined we had long ago settled as no defense at all.
From a wider POV (and here I don't imagine Rob and I would have a disagreement), taking this line of reasoning a step further, to say that it's different scenario from dealing with mobsters because of the legal limbo pertaining to international terror suspects, would just reinforce the point that what we're discussing, after all, is the deliberate creation of a legal limbo.
And I'm pretty sure that's against the law -- how could it not be? That would actually be, I don't know, anti-law, the wholesale negation of the entire concept of law. Surely that is the very essence of illegality? And should it not be prosecutable?
Anyway Greenwald is a lawyer and this seems to make sense.