The Waterboard-go-round

Am I reading this right? Intel czar Michael McConnell thinks waterboarding would be torture but no waterboarding that was actually done was torture, because torture is a crime and so that would mean that the people who ordered waterboarding (i.e., his bosses) are criminals. But what does this mean? If it's torture, it's torture.

This article available online at:

http://www.theatlantic.com/politics/archive/2008/01/the-waterboard-go-round/47911/