As I wrote about four days after Obama won, when it comes to the Constitution there is no such thing as partly pregnant. The President’s oath of office obligates him to fully respect the Constitution of the United States (or at least make a believable show of doing so, which most Presidents treat as the same thing). Disrespecting that oath represents a fundamental and often criminal failure by the President to carry out his duties.
George Bush left the next administration with a clever Sophie’s Choice in that the only way to stop pissing all over the U.S. Constitution is to upset the mother of all apple carts. Necessary steps would include, at a minimum, releasing the prisoners whom we can’t prosecute because we tortured them and then prosecuting the torturers.
Obama doesn’t like upsetting apple carts. He was (by far) the best option that Spaghetti Monster offered to American voters that year, but nonetheless we had every reason to think that we would wait a long time before he brought down the flaming sword of Justice on Bush-era criminals. One could hope that Obama would let facts leak out until public pressure ‘forces’ him to do the right thing but nope, Obama seems pretty determined to keep the truth from leaking out as well.
The simple fact is that Obama doesn’t have a multifaceted decision to make. Doing the right thing (one could call that ‘respecting his oath of office’) will bring on a political shitstorm as every Republican down to the student government level declares that the government has gone commiefascist and starts digging bunkers in their back yard. If Obama doesn’t want that fight then he has to keep innocent people in cages and tell the courts and the international community to go f*ck themselves.
Let them dig their bunkers, let them demand that they can imprison anyone they want for as long as they want without trial. We know who the real fascists are, and if you're afraid of them, well... then you concede your world to them.