The question you should be asking yourself is not whether Obama is implicitly giving torture a free pass by refusing to personally indict its propagators, but whether any sitting president can bring up charges against a former president. The answer is ‘no,’ but the reasoning is mainly predicated upon tradition of the office rather than simple legal precedent.
So as such, will Obama break tradition and indict Bush (from whose office the torture memos clearly originated)? The answer is again ‘no.’ It’s tough enough being the first Black president faced with the biggest economic crisis since the big one, two foreign wars and an obstinate, raving opposition, but to break tradition on top of that? He’d be pilloried by the pundits, and he’s banking on the public’s patience and goodwill right now.
There’s a political bonus that he’s enjoying by being classier than his opponents, for sure, and it’s really throwing the Republican party for a loop – if you want a laugh, try comparing Obama’s inclusive and lofty rhetoric to Michael Steele’s faux-ghetto patois – but I still think the crux of the matter is, he can’t be seen as doing anything that insults, however superficially, the office.
However, if like me you would still like to see Bush & Co get what’s coming to them, don’t yell at Obama: Pressure the Justice Department, who still have the option to move on the issue, or Congress, who have the option to pressure the Justice Department.
EDIT: Yes, I, too, would like to have been able to overhear the conversations between Biden and Specter. I’m sure they alone would push the decorum of Congress straight into the British Parliament zone, at which point, who needs soaps?