Yes, it is good that President Obama ordered the release of four more of the torture memos issued by the Office of Legal Counsel during the Bush administration. The inhuman interrogation techniques those memos authorized which include waterboarding, walling (in which a person is slammed against a wall), confinement in a small box and sleep deprivation clearly constitute torture and other crimes under U.S. law. There is nothing abstract about the techniques: they are initially focused on one individual and even discuss his psychological weakness in language similar to the novel 1984—although in this case, it’s bugs, not rats.
Yet President Obama goes out of his way to praise those who engaged in these unlawful practices and assures them they will not be prosecuted. In part, he asserts that the C.I.A. personnel were following, in good faith, legal advice. But since when did legal advice make torture into a lawful and permissible interrogation technique?
Torture is torture and all the legal window dressing in the world cannot hide its essence: the infliction of pain and suffering on human beings. If legal advice can protect torturers, no official anywhere can ever be prosecuted. Legal advice then becomes a get out-of-jail free card and will be employed by every petty dictatorship to protect its abusers.
In making the decision not to prosecute, President Obama is acting as jury, judge and prosecutor. It is not his decision to make. Whether or not to prosecute law breakers is not a political decision. Laws were broken and crimes were committed. If we are truly a nation of laws as he is fond of saying, a prosecutor needs to be appointed and the decisions regarding the guilt of those involved in the torture program should be decided in a court of law.
Prosecuting those involved in the torture program, particularly the officials who conceived, authorized and ordered the torture program is not “retribution” or “laying blame for the past” as President Obama says. It is about insuring that we will not again become a nation that employs in torture. The prohibition on torture should not be dependent on who is president or on the stroke of a pen. We prosecute those who break laws to deter lawbreaking. President Obama, by granting impunity to torturers, becomes complicit with their actions. History will not judge him kindly.