The Obama administration released the “torture memos” last week. They don’t tell us much that we haven’t learned already, although the specificity-the use of a neck brace to prevent whiplash during “walling,” for example-suggests a mentality even sicker than anyone suspected. Obama also said that since enhanced interrogation was conducted “in good faith upon legal advice from the Justice Department… [its perpetrators] will not be subject to prosecution.”

That, of course, is the “just following orders” excuse that the Nazis used, which was ruled out by Nuremberg, the Eichmann trial, and the 1984 Convention Against Torture, ratified by 146 nations including the U.S. But what of those who ordered enhanced interrogation and extraordinary rendition, going up as far as Defense Secretary Rumsfeld and Vice President Cheney? Obama says that he wants to look ahead, not backward.

It is not, though, a matter of “retribution” or “partisan bickering.” It is a question of establishing responsibility and, where appropriate, punishing crime. So far, a couple of noncoms, Graner and England, have been sent up for the horrifically documented abuses at Abu Ghraib, and General Karpinski was demoted to colonel. We now know that the problem was systemic, not a matter of a “few bad apples on the night shift.” Oh yes- General Antonio Taguba was cashiered in 2007 for delivering an honest report on our prisoner abuse, forced to resign, as he said, “for doing what I was asked to do.”

Spain considered indicting Bybee, Yoo, Haynes, Addington, Gonzales, and Bradbury, six of the functionaries who commissioned and drafted the “torture memos.” The 1984 Convention Against Torture says that “No exceptional circumstances whatsoever, whether a state of war or a threat of war or any other public emergency, may be invoked as a justification of torture.” That is an international agreement that, as I said, we signed. On its signing, in May 1988, President Reagan said that the agreement meant that the prohibition on torture fell under “universal jurisdiction.” It is not, then, a matter of national choice.

And yet, we, the United States, punished Taguba, the honest soldier who explored the issue and reported on it.

On March 23, 2003 President Bush said, “If there is somebody captured [from our military], I expect those people to be treated humanely. If not, the people who mistreat the prisoners will be treated as war criminals.”

And Bush said, repeatedly, “We don’t torture.” That disclaimer holds true only if the memos on waterboarding, stress positions, sleep deprivation, extreme temperatures, etc., somehow convince anyone other than the CIA that those actions aren’t torture. And, of course, if we send prisoners to countries that do torture, as we have done, then Bush is telling the truth. We don’t torture. But we do facilitate torture.

Those who executed this policy will not be prosecuted. What of those who designed the policy? If we are a nation of laws and not of lies that justify the breaking of laws, the law must be permitted to follow its established patterns. If not, we cannot claim to be a nation of laws, and we cannot, for example, decry the sentencing of the journalist Roxana Saberi in Iran to eight years in prison as “unjust.”

Furthermore, the evidence suggests that the CIA was engaged in aggressive interrogation of prisoners some four months before the first Bybee memo of August 1, 2002 that condoned such activity. The CIA, of course, has destroyed the tapes of those sessions.

General Michael Hayden waxed indignant when Obama disclosed the “torture memos.” Their publication will, Hayden huffed, “deter other governments from cooperation with the U.S. because it shows that the U.S. can’t keep anything secret.”

We have, clearly, wanted other nations to cooperate with us in violating the Geneva Conventions on POWs. And I have a hunch that our traditions and beliefs are better served when our government is not working in secret to break both our laws-the Eight Amendment’s prohibition of “cruel and unusual punishment,” for example-and the “universal jurisdiction” of agreements that uphold humane behavior.

If the country is to go forward with some confidence in the rule of law, those who committed unlawful acts in the name of “the war on terror” must be prosecuted. If not, a future administration may determine that it can do anything it wants to do-in this country to its citizens, or in some foreign land to its people-with impunity. After all, there will be a strong precedent.

President Obama seems, as of the third week in April, to be open to some consideration of prosecuting those who planned and commissioned torture. He is to be encouraged in pursing some meaningful process of assigning accountability for practices that have harmed us all.

H. R. Coursen’s latest novel, The Werewolves, about right-wing paramilitary groups in the U.S., will appear soon.