This is what happens when officials don't get prosecuted for illegally torturing people
Barry Eisler
August 14, 2015
Well, I guess this is a thing now…people running for president musing about whether they might reintroduce the torture techniques Obama “prohibited” when he took office. The latest is Jeb Bush; three years ago, it was candidate Romney.
The fact that torture is framed by these candidates as a policy choice, and the possibility that one of them might in fact reintroduce it, is one of Obama’s chief legacies. He chose not to prosecute torture as a crime, instead banning it (or some of it, anyway) via executive order. As I’ve said before:
Obama has no more power to prohibit torture than Bush had to permit it. Torture is illegal in America. The law, not the president, is what prohibits torture. What would you make of it if the president said, “That is why I prohibited murder. That is why I prohibited rape. That is why I prohibited embezzlement, and mail fraud, and tax evasion…” In America, the president doesn’t make the law, nor does he rescind it. The president executes the law—which is why Article 2 of the Constitution is called “The Executive Branch.” Presidents who make and rescind laws at will are more commonly known as kings.
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Remember: what one president by fiat prohibits, another at his or her pleasure can permit. Anyone who cheers Obama’s torture “ban” is missing the insidious, long-term effect of that ban…and could probably use a refresher course on civics, too.
Torture: de jure illegal; de facto policy. Remember Hope and Change? No, it hasn’t gone away. It’s just become a punch line.