Dahlia Lithwick gets it:
It's currently fashionable to believe that political and ideological battles are "real," and it is the law that is empty symbolism. But Cheney stands as an illustration of the real-life, practical value of the law. Torture really did become legal after 9/11, and even after it was repudiated -- again and again -- it will always be legal with regard to Dick Cheney and the others who perpetrated it without consequence. The law wasn't a hollow symbol after 9/11. It was the only fixed system we had. We can go on pretending that torture is no longer permissible in this country or under international law, but until there are legal consequences for those who order or engage in torture, we will only be pretending.
Precisely. If there are no actual legal ramifications for torturing, or if those ramifications depend rather obviously on power (KSM fine, Abu Ghraib, not so much) then torture is effectively legal. It's that simple. The best you can say about the current White House is that they are refraining from using certain legal methods in prosecuting the War on Terror. Torture is one of those methods.
It's been pointed out that Obama did not have the political muscle to do anything more than take a "look forward" approach. But that's why you have an attorney general who -- theoretically -- is supposed to operate independently. That this is merely "theoretical" isn't comforting. It's a problem.
MORE: Fixed Dahlia Lithwick's name. My apologies for mangling. Ugh.