The varying motives for the alleged crimes notwithstanding (protecting the United States vs. not getting in trouble with the First Lady), Chait overlooks an important event when he says:
This argument [that Bush's decisions on torture should be understood in the light of post-Sept. 11 anxiety] would carry more weight if Republicans had changed their thinking on torture and could be expected to follow the law the next time they won the presidency. Alas, they show little sign of intellectual progress.As a matter of fact, the Bush administration's thinking changed enough that it decided to stop waterboarding in 2005. So if Chait is really saying that torture would have been understandable immediately after Sept. 11 if ultimately the U.S. learned that it probably shouldn't engage in such practices -- well, it did learn, because it stopped, and under Republicans. The pro-torture arguments Chait describes as being intellectually stunted are part of a political rather than a policy debate, since they're being made by those who are engaging in mortal combat over whether Bush officials should be prosecuted. No matter if their thinking has evolved or not, saying, "Now that you think about it, we really are war criminals" is probably not the best defensive move.
If the actions of the next administration, Republican or Democrat, are Chait's real concern, then an intensive blue ribbon investigation (but not leading to prosecutions) is the best way to go.