Giving the torturers a pass

Andrew Sullivan nicely explains that not only is it morally wrong for President Obama to give Bush administration torturers a pass, it is actually legally wrong:

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.

Glenn Greenwald adds:

Needless to say, I vehemently disagree with anyone — including Obama
— who believes that prosecutions are unwarranted.  These memos
describe grotesque war crimes — legalized by classic banality-of-evil
criminals and ordered by pure criminals — that must be prosecuted if
the rule of law is to have any meaning.  But the decision of whether to
prosecute is not Obama's to make; ultimately, it is Holder's and/or a
Special Prosecutor's.  More importantly, Obama can only do so much by
himself.  The Obama administration should, on its own, initiate
criminal proceedings, but the citizenry also has responsibilities
here.  These acts were carried out by our Government, and if we are
really as repulsed by them as we claim, then the burden is on us to
demand that something be done. 

Obama failing to see to the prosecution of Bush officials for these heinous acts is clearly not as wrong as the actions of the Bush officials, but it nonetheless diminishes the rule of law, which is never a good thing.