This is the deepest and darkest aspect of the impact of Bush-Cheney's torture program on the constitution and the future. Leave aside for a moment the policy debate over torture in the abstract. From the very beginning, that has been largely moot. Why? Because 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 declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water
It can't really be clearer than that. And the reason, of course, is the colonists' memory of the power of the monarch, especially with respect to torturing and mistreating prisoners of war. Now 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 US soldier, would Dick Cheney refuse to call it torture? Of course not, although it is telling that no reporter has ever asked him this obvious question directly.
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.
Note that this wasn't an emergency moment, or a ticking time-bomb scenario. It was a decision to torture made months after the 9/11 attacks and re-asserted years after the 9/11 attack, and set up as a program, with elaborate rules, staffing and bureaucracy, to torture prisoners for the indefinite future.
Now fast-forward to February 2007 when the International Committee of the Red Cross notifies the president of the United States that it believes that his administration has engaged in what was unequivocally torture of prisoners. At that point, the president is required, by law and by treaty, to open an investigation and prosecution of the guilty parties. The president failed to do that, another breach of the law. Moreover, any president privy to that information is required to initiate an investigation and prosecution – or violate the law and the Geneva Conventions.
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.
(Photo: the aftermath of an enhanced interrogation under the command of George W. Bush in Iraq, where the Geneva Conventions applied.)