I have a feeling that even when torture is explicitly prohibited, and there are no loopholes of any kind, there will still be those who will push it right up to the edge, and there will still be people dreaming up creative ways to interrogate detainees that would not fall under the heading of "torture" - at least until word of these new methods got out.  

But, create a loophole - a classified loophole - and all bets are off.  There goes the transparency of detainee treatment - can't have people poking around checking on it, lest it be revealed how often and how creatively the loophole is invoked.

And so much for elevating and repairing our standing in the world.  So much for our credibility on human rights.  

The question is are the loopholes he's talking about big enough to allow even more bush era torture fanatics like brennan in, to enable Obama to coopt far right GOP senators and reps?

This is all about gaining "bipartisan" support, and power. Nothing else.

As Phillip Carter and Dahlia Lithwick at Slate noted back in  August 2007 in
All Wet: Why can't we renounce waterboarding once and for all?, Barack Obama appears to have the same problem (or fantasy, depending on you POV) that George Bush had. There is virtually no sunlight between the two when it comes to amassing and retaining power, and when it comes right down to it any suggestion that thew presidential power be limited justifies "exceptions in extraordinary cases".

   What is it about waterboarding that makes the White House so reluctant to renounce it? It's an old torture technique from the Spanish Inquisition that consists of immobilizing your target on an inclined board, head down, with cloth covering their face. Pouring water over the face simulates drowning. The practice leaves no physical marks. It's illegal under the Geneva Conventions and has long been treated as a war crime by the United States. We even use this technique to train our own troops to withstand illegal torture by our enemies. As retired Rear Adm. John D. Hutson, a former top Navy lawyer and now dean of Franklin Pierce Law Center in Concord, N.H., testified at Mukasey's hearing last week, "Other than perhaps the rack and thumbscrews, waterboarding is the most iconic example of torture in history. It has been repudiated for centuries. It's a little bit disconcerting to hear now that we're not quite sure where waterboarding fits in the scheme of things."

    For starters, Bush won't renounce waterboarding because it violates the two choice cocktails of anyone drunk on executive authority: Absolut secrecy and Absolut power.

    First, secrecy. It has long been the view of the Bush administration that nothing can be deemed illegal so long as it remains a secret. Never mind that it's a secret only to people living in igloos without wireless service. That's why, even while there's a major movie out about rendition, we call it a secret. Since they have yet to make a movie called Waterboard, Mukasey could take the absurd position that he isn't sure precisely what it involves. Cute trick. Call it a secret, and there can be no legal debate. As the White House insisted Friday, "Judge Mukasey is not in a position to discuss interrogation techniques which are necessarily classified." If the soon-to-be-AG cannot hazard an opinion on the legality of waterboarding, even when he can read step-by-step accounts of it on the Internet, who are the rest of us to condemn it?

    The problem with this argument is that the administration's use of waterboarding on detainees has been known publicly since at least May 2004. Everybody knows what it involves, and even if you live in an igloo without wireless, you can tell it's illegal. The argument that you can't call it torture until you've been "read into" the torture program is just a lawyer's trick that justifies keeping bad conduct secret to end-run the laws.

    Next, there is the absolute authority argument. The real reason the Bush administration clings to its power to order waterboarding has little to do with any strategic argument and everything to do with the old standby assertion that to renounce his authority to waterboard would be to give away the president's power.

However, I think I would rather have laws against torture and under this extenuating circumstance I would break that law and then later on defend what I did as national self defense.

Obama to end harsh interrogation; Will Order CIA To Follow Military Rules For Questioning Prisoners.

If it is true, it would hardly be surprising if intelligence advisors retained from the Bush administration, like Brennan for example, might be pushing to retain what they did before. The simple fact of having an administration deliberately designed to bring in a multiplicity of viewpoints means that even reactionary views like these will get an airing in the development stages of policy, hopefully simply to tap into the concerns behind them and mollify them with more progressive solutions.

What we do know (even from the story itself) is that "Obama is preparing to prohibit the use of waterboarding and other harsh interrogation techniques by ordering the CIA to follow military rules for questioning prisoners." There are as many hints that he'll ban the use of torture by executive order as soon as he gets into office. We know the AG he picked says waterboarding is torture and that he would ensure US anti-terrorism policies were faithful to the "letter and spirit of the Constitution."