Torture is, and has long been, illegal in every case, without exception. It is banned by our Bill of Rights, the Universal Declaration of Human Rights, the Geneva Convention relative to the Treatment of Prisoners of War, the International Covenant on Civil and Political Rights, the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, and Title 18, U.S. Code, Section 2340A. Nothing any president can do can change this or unchange it, weaken it or strengthen it in any way.
Preventing torture does not require new legislation from Congress or new orders from a new president. It requires enforcing existing laws. In fact, adherence to the Convention Against Torture, which under Article VI of our Constitution is the supreme law of the land, requires the criminal prosecution of torturers and anyone complicit in torture.
Most of the seemingly noble steps taken by Congress in recent years and by President Obama in his first week have served to disguise the fact that torture always was, still is, and shall continue to be illegal.
President Bush also signed executive orders and ordered the creation of legal opinions claiming that torture was legal. President Obama's new order revokes one of Bush's. But Obama has no more right to undo the legalization of torture than Bush had to legalize it in the first place. Only Congress has or should have the power to legislate. Obama's new order requires adherence to laws, rather than claiming the right to violate them, and yet there is a wide gap between publishing an order requiring adherence to the laws and actually enforcing the laws by indicting violators.
The same order that President Obama uses to ban torture also orders the closure of all CIA detention facilities. Congress never authorized the creation of such things in the first place. Ordering their closure is the right thing to do. But if a president can give the order to close them, what is to prevent another president giving the order to reopen them? The answer should be all of the laws and treaties violated.
Obama's executive order largely orders the government to cease violating various laws. But in so doing, rather than strengthening the laws, the new president weakens them almost to the point of nonexistence. For, what power does a law have to control behavior if it is never enforced? What deterrent value can be found in a law the violation of which results merely in a formal order to begin obeying it? And what status are we supposed to give all the other violated laws for which no such formal orders have been given?
Rather than picking certain of Bush's unconstitutional executive orders or signing statements to revoke, leaving the others in apparent need of revocation, President Obama should simply announce that he will not give any consideration to any past orders or statements that claim the right to legalize the illegal. And the new attorney general should appoint a special prosecutor to indict and prosecute the previous president, vice president, and all top officials who violated laws.