The post hoc mess that passes for brilliant legal thought has risen to new depths. It seems that intentionally cruel punishment really is justified, under this enlightening new moral theory of justice. Follow the logic, if you will:
1) Identify something most people agree should be done. (In this case, prosecution of war crimes long after the fact)
2) List two possible reasons we might agree about this thing and the suggestion that one alternative is to disagree with it. Be careful to lightly dismiss one option no matter how valid it may be*. Be sure to include your conclusion as the second option: that "vengeance is morally proper", and perhaps "even a moral imperative."
3) By process of elimination, announce that you are in favor of your conclusion.

Voilá you have moral justificiation for your viewpoint.

I'm going to appeal to a definition once again. Moral imperative. The obvious meaning of this phrase is an action on the part of an individual or society that takes that individual or that society out of a morally unacceptable situation and into a morally acceptable one. If Volokh, or anyone else, has a better definition, I'd be happy to hear it. But I think that, upon reflection, we can all agree that this is at least close to the meaning of the term "moral imperative".

So, I don't know if Volokh reads his trackbacks or not. If he does, then could I ask him please to start from this or some other meaningful definition of moral imperative, and show how retribution might, perhaps, even be a moral imperative?

And, if Volokh reads his trackbacks, I would also give him a suggestion. I have actually thought about what is morally proper or imperative in terms of, you know, what types of actions have the power to correct a morally unacceptable situation. I have discovered, as I laid out in my first post about this mess, a small assortment of actions that can fit that description:
1) Prevention, including:
...a) Rehabilitation
...b) Quarantine
...c) Deterrence
2) Restitution

I even went so far as to suggest that a painful punishment might go (ever so slightly) toward restitution in terms of closure for families of murder or rape victims. I maintained that one need not violate the eighth amendment on this account because closure is no more guaranteed by excessive cruelty than by the the satifaction that comes from seeing justice served in ways that do not include cruelty, because this type of closure is not a very effective form of restitution in the first place, and because risks of great harm to the innocent outweigh potential closure benefits when we go beyond eighth amendment restrictions.

Prosecution of war criminals long after the fact can, in fact, provide closure to victims, and can therefore fulfil the need for restitution (not retribution). This was left out of Volokh's not-so-exhaustive list of answers to the questions about why we seek to capture and prosecute those people.

I can easily show how each of my proposed rationales for punishment has the impact of righting a wrong. Volokh would like to add retribution to the list. I ask him again, can he justify it? Can he show how retribution serves to take a morally unacceptable situation and make it acceptable? And why did he not do this in the first place, instead of cooking up every kind of post hoc pseudojustification that his creative legal mind could think of? Why does he not have a robust enough theory of justice that he can draw is opinions from it in the first place? He is, after all, supposed to be a legal scholar!

*I disagree with Volokh in his thinking that prosecution of war crimes long after the fact lacks a deterrent effect. A potential war criminal, taking a calculated risk that he will escape justice in the short-run, especially after a victorious war effort, may be dissuaded from many crimes by the fact that so many of his predecessors cannot enjoy their escape in middle- or old- age because they must live life in the shadow of possible capture and conviction, whether their effort was victorious or not.