It would indeed have been troubling if they had done this. However, as in all legal-related matters there are going to be arguments on both sides in that hyper-nuanced world.
I think it’s to the credit of the Bush administration that they ultimately decided against this policy despite vocal arguments in favor of it from multiple advisors, including the supposedly all-powerful “man behind the curtain” (if you believe the moonbat conspiracy honks) Dick Cheney. Clearly W. kept his head screwed on straight making the call on this.
Having frank discussions among Presidential advisors with strong advocacy on both sides is crucial for giving the President the most and best information on which to base his decisions. A bunch of yes-men all thinking inside the same echo chamber (as Barry Zero seems to have) never allows one to challenge his initial knee jerk reaction.