“Those who say that life is worth living at any cost have already written an epitaph of infamy, for there is no cause and no person that they will not betray to stay alive.”

- Sidney Hook

Mark 30 June 2011 in the same black as 7 December 1941 — two days that will live in infamy. The only difference is that on 8 December 1941 the President of the United States spoke before Congress to address the outrageous attack on Pearl Harbor; on 1 July 2011, only the blogosphere contained any outrage of the events of 30 June.

On 30 June 2011, the Justice Department gave torturers a pass, announcing that, of the 101 cases involving alleged illegal treatment of post-9/11 detainees by the CIA and its contractors, 99 were being closed. The remaining two, which involved deaths in custody, would continue to be investigated.

The decision to drop virtually all torture cases is based on a policy promulgated by Attorney General Eric Holder shortly after he took office. Reiterating this policy on 30 June, Holder wrote the Justice Department “would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.” This, of course, refers to the infamous “torture memos” provided in 2002 to Alberto Gonzales while he was White House counsel by John Yoo, then Deputy Assistant Attorney General and Jay Bybee, who was Assistant Attorney General and now serves as a judge on the Court of Appeals for the Ninth Circuit. These memos, which sanctioned virtually all forms of “enhanced interrogation” (torture), were withdrawn as legally deficient by Jack Goldsmith, President George W. Bush’s head of the Office of Legal Counsel, and later specifically disavowed by President Barack Obama.

Prosecuting most of these cases would bring under legal scrutiny validity of the memos’ ability to exempt those who practiced torture from legal responsibility— the “golden shield,” as one Bush administration official called them. But the law says “the defense of superior orders,” doesn’t work when the act in question is manifestly illegal. And torture is illegal, both under U.S. Law and International Law. The defense didn’t work for Lt. William Calley when he and his platoon killed over 300 women, children and elderly men in the village of My Lai during the Vietnam War.

And it didn’t work for the defendants at Nuremberg. Acting on the orders of others to perform illegal acts does not absolve the perpetrator of guilt. From Nuremberg onward, our legal system has held that individuals are responsible for their acts, regardless of what orders they were given to carry out. Now, the Obama administration has thrown that legal principle out the window.

What will we say when other governments follow our example by providing immunity from prosecution to torturers? Imagine how we might react were any future government to perpetrate the heinous acts the Nazis committed in the ‘30s and ‘40s. We would have no legal, and certainly no moral, leg on which to stand to bring about another day of reckoning such as occurred at Nuremberg.

The Romans had an expression for it: “Nulla poena sine lege”—no punishment without a law. But people sometimes forget the opposite is also true: Without punishment for offenders, a law itself can die.