Torture Memos are Evidence of Conspiracy to Commit Torture

The conspiracy to commit torture, which took place at the highest levels of government in the Bush corporo-fascist regime administration, now has enough public evidence, thanks to the recently releases memos, to warrant prosecution.

But before we go down the criminal prosecution road, we should see the immediate impeachment of Judge Jay Bybee. For the legal angles of this travesty of American national security, American reputation, and American authority, I turn to Scott Horton of Harpers who writes today in The Torture Tango:

The memo-writer and the person soliciting the memo both understood perfectly that their role was to get interrogators out in the field to go ahead and use the techniques against which reservations were being expressed. They understood that, if the memos were issued, individuals would in fact be subjected to the torture techniques they were approving. They also fully understood that it was likely that individuals would be killed or would suffer lasting impairment as a result of their decision to give the greenlight. This satisfies the prerequisites for a criminal charge against the memo writer under section 2340A, conspiracy to torture. The preparation and issuance of these memoranda were criminal acts, and the relevant level of mens rea likely emerges from the dialogue surrounding their issuance.

What do you call it when you have evidence of a crime and you don't prosecute? Is that prosecutorial discretion? Or misconduct?