Perhaps my deepest disappointment regarding the Obama administration has to do with water -- not water for drinking or for washing or for growing crops or even for cooling the nation's nuclear reactors. It's about water for torture.
Yes, this is about waterboarding. This is about torture and about how the Obama administration has so far refused to prosecute those responsible for torture committed in America's name.
Let's backtrack for some context.
On Dec. 19, 1998, the president of the United States was impeached by the House of Representatives. The charges included perjury and obstruction of justice. The president was acquitted the following February.
In the months before the impeachment vote, we were told many, many times that no one is above the law -- not even the president of the United States.
For example, on Feb. 18, 1998, David Broder, the "dean" of the Washington press corps, wrote: "The rule of law requires any American to give truthful testimony when sworn as a witness in a legal proceeding. If it turns out that President Clinton has not done that, the props of public opinion now supporting him will collapse. I would bet anything that Americans will once again say no one is above the law."
By the end of that year, Mr. Broder was calling for Mr. Clinton to resign as a "true act of contrition" for having misled the American people.
Mr. Broder was not alone in his assessment. Current Republican presidential candidate and former House Speaker Newt Gingrich said the same thing in May of '98. Independent Counsel Kenneth Starr said it, too, as did Republican Sen. Strom Thurmond. They all said no one is above the law -- not even a president.
And so, the holder of the highest office in the land was impeached for lying about being sexually intimate with someone other than his wife. Because no one is above the law.
Almost exactly a decade after Mr. Broder had pointed this out in regard to former President Bill Clinton, CIA Director Michael Hayden admitted to Congress that the CIA had tortured three detainees in the early years of the war on terror.
Torture, then and now, is against the law. The United Nations Conventions Against Torture, signed by President Ronald Reagan in 1988 and ratified by the Senate in 1996, defines torture as:
"Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
Further, the conventions state:
"No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."
Further, the U.S. Constitution states: "All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding."
That's the law.
This past January, former President George W. Bush, admitted to ordering the CIA to torture members of al-Qaida.
"Damn right," I believe, were the words he used.
He justified his actions by saying that they saved lives -- although, as you just read, no justification is a valid defense.
In April 2009, David Broder supported the Obama administration's refusal to prosecute the torture committed during the Bush administration because calls for such prosecutions are "an unworthy desire for vengeance." He called debates about whether to employ torture (Mr. Bush -- yes to torture; Mr. Obama -- no to torture) mere "policy disagreements."
Never mind that a law, a law with constitutional standing, was broken.
By refusing to prosecute, President Barack Obama is violating his oath of office to see that the laws of the United States are "faithfully executed." He is letting criminals off the hook and setting a precedent by which future presidents or presidential appointees might again justify the use of torture and believe they can get away with it.
Last month, a University of California law dean and high-ranking member of the Obama transition team made the startling charge that members of the team feared that military or national security officials might revolt or stage a "coup" if President Obama pursued an investigation of the torture that occurred during the Bush administration.
Maybe the dean misremembered what he heard three years ago, but it really doesn't matter. If one president can be impeached for lying about sex while another can order torture with impunity, then it's obvious that the adage "no one is above the law" just isn't true -- and that we may be losing our republic because of it.
First Published: October 4, 2011, 4:00 a.m.
