If I were one of the torture team, and by torture team I mean Bush, Cheney, Rumsfeld, Yoo and others, I would not be sleeping well. According to a recent Gallup poll two-thirds of Americans want to see former administration officials investigated for torture and wiretapping and forty percent want prosecutions. That is an astounding percentage in a country where press and pundits have led us to believe that Americans don’t care, or worse, supported torture and the wiretapping of our phones. I am sure it made the torture team run to their shredders and their lawyers. It should have.

The torture team openly and publicly broke two of the most important criminal laws on our books: the anti-torture and war crimes statutes. It could be jail for life and even the death penalty for the perpetrators. Let’s take a look at just one example of the hundreds available. Cheney bragged that he approved the use of waterboarding, the medieval drowning technique, condemned in the past as torture by our own courts. He even boasted he would authorize it again. Eric Holder, our new Attorney General stated at his confirmation hearing that waterboarding was torture. So there you have the case: an open, public confession of criminality by Cheney and a statement that such conduct is criminal by the highest law official in our land.

So what’s the problem? Why has not Holder initiated a prosecution? Why has Obama been mealy mouthed about investigation and prosecution of criminal activities that he is obligated to investigate by our solemn treaty commitments under the Convention Against Torture. That treaty makes it absolute: if someone suspected of engaging in torture is in your country you must investigate. Obama is in violation of the law.

Here is his lame excuse: Obama says he wants to look forward and not backwards, and that the U.S. will not engage in torture going forward (let’s hope that is true). Obama is smart enough to know better; it’s a facile statement that appeals to those who just want to hear it without examining its meaning. Prosecuting the torturers is about the future – it is about deterring torture going forward. A failure to prosecute is the equivalent of granting impunity, an impunity that will embolden this administration or the next one to again violate human beings and break the law. The image that says it all is the one of Obama the day after his inauguration signing an executive order to end torture. A great day in America, assuming it really does that. But it is also one of the scariest images in American history. For what Obama did with a pen, the next President can just as easily undo with a pen. The absolute right to be free from torture should not depend on the vagaries of elections. Justice against torturers should be sure and swift. It is the only way this penultimate crime can be prevented and we can have a future free from torture.