(photo: takomabibelot via Flickr.com)

On last week’s Declaring Independence, I interviewed Jeff Morley, the national editorial director for the Center for Independent Media, on the subject of what, if anything, President Obama should do in regard to the torture and abuse of detainees that was authorized and carried out by the Bush administration (listen to the full interview here).

Let’s start with these now-indisputable facts: The Bush administration engaged in torture and abuse of detainees, and the orders to do so came from the highest levels of the White House. We know this from innumerable memos that have been released from the intelligence community and the Pentagon, from the evidence contained in bipartisan reports, and from the blunt admission of Dick Cheney that he personally authorized waterboarding. This is no longer in any reasonable dispute.

What remains contentious at this point is what to do about it. There seem to be three schools of thought: A) Do nothing about it because the administration did nothing wrong and was acting in accordance with their sincere belief of what the law required; B) Convene a “truth commission” that would investigate and publish their findings so that the public will know what was done in their name, but without prosecutions; and C) Pursue criminal investigations of high-ranking Bush administration officials, including President Bush, Vice President Cheney and former Defense Secretary Donald Rumsfeld.

Let me start by dismissing the first option entirely. It is simply absurd to believe that those who authorized waterboarding and other acts could have genuinely believed that doing so was not a violation of American law and of our treaty obligations under the Geneva Conventions and the Convention Against Torture, both of which were ratified by the United States and are binding law under the Constitution.

This is not a gray area. The United States has tried and convicted soldiers from our own nation and from other nations for waterboarding as a war crime. After World War II, we organized the Tokyo War Crimes Trials, similar to the Nuremberg trials, and we tried and convicted many members of the Japanese military and high-ranking government officers for waterboarding American and allied troops.

More recently, American courts have ruled against Ferdinand Marcos, the former dictator of the Philippines, and issued a judgment of nearly $800 million for what the court bluntly called “human rights violations” for waterboarding dissidents in that country. We have also tried and convicted our own soldiers for doing so during the Spanish-American war, and in 1983 a Texas sheriff was convicted of waterboarding inmates and sent to prison for 10 years. That waterboarding is torture and has always been considered so by the United States cannot be denied.

So what do we do now that our own leaders have admitted to authorizing this vile act? I think the answer is a combination of options B and C above. There needs to be a thorough investigation, one with full subpoena power and the power to grant immunity. But those grants of immunity should be used to get lower-ranking officials to testify about what they were told and by whom without fear of prosecution. This could be done through a bipartisan panel or through a special prosecutor; each has its advantages and disadvantages.

Regardless of what form the investigation takes, I believe that criminal charges should be pursued against any high-ranking official from the administration, including Bush and Cheney themselves, that can be shown to have authorized torture. Nothing less than America’s moral credibility is at stake in this situation.

During his acceptance speech at the Democratic National Convention in Denver, Obama said that the world would be more moved by “the power of our example than by examples of our power.” This is the perfect opportunity to put those words into action. We have long claimed to lead the world in demanding respect for universal human rights and for the rule of law, the notion that no man, no matter how powerful, may violate the law with impunity. If we do not see to it that those responsible for these crimes are brought to justice, that leadership will have been forfeited, perhaps forever.

My concern during my conversation on the radio with Jeff Morley was that doing this might be politically damaging to the Democrats, a concern I based on a belief that the American public, as a whole, is not particularly bothered by torture and would not want to see such prosecutions. But that very same day, Glenn Greenwald linked to a recent survey that pretty clearly suggests otherwise.

That survey, done by the Washington Post, found that American by a wide margin (58 percent to 40 percent) rejected the use of torture no matter the circumstance. A smaller majority (53 percent to 42 percent) want the prison at Guantanamo Bay closed, more than 60 percent said the detainees held there should be tried in American courts and, most importantly, a small majority (50 percent to 47 percent) said that the Obama administration should pursue investigations of criminal wrongdoing for torture by the Bush administration.

Those results provide President Obama with the political cover he needs to do this. He still needs to be concerned about this issue distracting from the priority of handling the economy, of course, so the way to do this is through a special prosecutor rather than a bipartisan commission operating publicly. That will allow the investigation to proceed with all due process protections before a grand jury without having it turn into a sideshow with public hearings. The prosecutor can then decide whom to charge and with what and issue a full public report of his findings.

If we do not pursue this ourselves, other nations may well do it for us. The same prosecutor in Spain that brought charges against Chilean dictator Augusto Pinochet is already investigating possible charges against Rumsfeld. We cannot afford the humiliation of allowing another nation to prosecute our own leaders when we should be doing it ourselves. President Obama has the opportunity to show the world that America’s support for human rights and the rule of law is more than mere rhetoric; failure to seize that opportunity will be the end of American moral credibility.