...even if you believe that the president has the duty to torture terror suspects, under the constitution, he has no legal right to do so without Congress' passage of legislation repealing the laws and treaties governing such torture. The use of torture is part of the laws of war and only Congress has the constitutional authority to "To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water."-Andrew Sullivan, on President Obama's decision to hold off on any sort of tribunal that would charge the heads of the previous administration with war crimes.
It can't really be clearer than that...no legal authority in human history would judge the waterboarding of a prisoner 83 or 183 times in one month as anything but torture. If it were done to a U.S. soldier, would Dick Cheney refuse to call it torture? Of course not...
And so it is simply an empirical fact that president Bush broke the law and violated his oath of office by ordering the torture of prisoners.
And so Obama's refusal to investigate war crimes is itself against the law. And so torture's cancerous route through the legal and constitutional system continues, contaminating the future as well as the past, rendering the US incapable of upholding Geneva against other nations, because it has violated Geneva itself, and giving to every tyrant on the planet a justification for the torture of prisoners.
In this scenario, America becomes a city on a hill, where the rule of law is optional and torture acceptable if parsed into legal memos that do not pass the most basic professional sniff-test.
America becomes a banana republic.
Sullivan makes several very strong, very valid points. The only way to cleanse America's soul of this horrific stain would be to punish those who gave the green light to torture. The only way to assure that it won't happen again with another reckless half-wit of a president is to lock Mr. Bush and Mr. Cheney (and their many minions) in a cinder block cell and throw away the key.
That said, I remind Andrew of his point a while back (I am unable to find the link) that, at the moment, the President has to be the president. He can hold back on investigations and prosecutions of his predecessors (mainly because he has to politically) while others do the dirty work for him.
It's not the best way to handle it. If I were in Mr. Obama's shoes, the previous administration would be behind bars already, with its two leaders rotting in the Hague, damn the political consequences.
But President Obama doesn't play that way. I think it would do us all well to remember that our new president knows what he's doing. While the rest of us are playing checkers, this guy is playing chess.
