Though cloaked in much more elegant language and inspiring pride in the loftiest aspirations of the U.S. Constitution, President Obama did indeed confirm that he intends to revive the military commissions — albeit with additional safeguards, he says — and that he believes there are some people who cannot be tried in any sort of court but are still too dangerous to be released. As much as those determinations will disturb civil liberties advocates, you could see in his speech that Obama is taking pains to find a legal justification for his actions, and — the good news — he acknowledged the need to submit all such actions to the oversight of Congress and the federal courts.

As I wrote yesterday, a recent federal court decision confirms his power to detain those at war with the United States, but defined who those people actually are more narrowly than the Obama administration has previously.

As the Raw Story reports, a new study by James Walsh and James Piazza of the University of North Carolina at Charlotte, forthcoming in Comparative Political Studies, analyzes the influence of human rights abuses on terrorism, and finds that countries’ respect for “physical integrity rights” correlates with a reduced incidence of terrorist attacks. Their hypothesis is that physical abuse makes it more, rather than less, difficult for authorities to gather reliable information about terrorists, and therefore makes it more difficult for authorities to thwart an attack before it occurs.

Although as Ryan Sager at True/Slant points out, their study proves correlation, not causation, it’s still something the Sunday talk-show hosts might want to point out to Cheney the next times he makes his case that torture works and President Obama’s commitment to end it will lead directly to the next attack on U.S soil.

Instead, as James Walsh, one of the study’s authors puts it: The study “suggests that a surprisingly easy and morally unambiguous counterterrorism strategy is to be nice to people. Being mean (like, say, torturing) seems to annoy some victims, who go on to become or serve as examples to new terrorists.”

As Caroline Fredrickson of the American Civil Liberties Union said earlier today regarding the Justice Department’s internal ethics report, which was concluded back in December but still not released:

More than five years after the first disclosures of torture, it should concern all Americans that there is a 200-page draft government report on the role of three lawyers, but absolutely no Justice Department investigation of their clients – those top White House and CIA officials who asked for the opinions and reportedly made decisions on what torture tactics to use on which detainees. A top-to-bottom investigation is needed to examine not just those who authored these opinions but those who requested them and to determine whether these DOJ findings were watered down for political reasons. Congress can and must play an active role in that investigation. [Emphasis added.]

That reasoning applies as well to the Judiciary subcommittee’s planned hearings. The two confirmed witnesses so far, Zelikow and former FBI agent Ali Soufan, will undoubtedly have important things to say about the legality and efficacy of torture and abuse of detainees, as well as on the warnings that they and others gave to policymakers against using those tactics.

Still, neither one is likely to be able to answer the critical questions that remain, specifically about who at the White House requested that advice and what they did with it.

“That’s the big missing piece of the puzzle,” says Chris Anders, senior legislative counsel at the ACLU.

Lawyers such as David Addington, chief of staff for former Vice President Dick Cheney; John Bellinger, legal adviser to the National Security Council at the White House, and former National Security Adviser and Secretary of State Condoleeza Rice, — who’s been giving all sorts of confusing and contradictory answers lately to Stanford students and 4th grade classrooms –could, under oath, shed a lot of light on what really happened.

Whitehouse’s announcement is certainly a step in the right direction. The Judiciary subcommittee is still putting together its witness list, but let’s hope it includes both the lawyers who drafted the memos and their clients who ordered them.

President Obama’s decision yesterday to grant immunity to the CIA officers who carried out the plan has now laid the responsibility for the entire program of “extreme interrogations” squarely in the lap of the government’s lawyers.  That means former Attorney General Alberto Gonzales and the Justice Department’s Office of Legal Counsel — the legal brain trust for the White House and the Bush administration’s senior policymakers. How exactly those lawyers came to write the memos that granted legal authority to torture prisoners, in violation of well-established domestic and international law, is now the missing piece of the puzzle.

Were they instructed by the White House to reach particular conclusions? Or were they engaged in a good-faith legal analysis? These questions are critical to determining whether their conduct — or anyone else’s — was criminal.

So far, President Obama and Attorney General Eric Holder, however, have shown no inclination to open a criminal investigation of the matter, despite the many calls from human rights and civil liberties groups to appoint an independent prosecutor. Both have said repeatedly that they want to look forward rather than backward. As President Obama said in his letter to the CIA employees yesterday:  “This is a time for reflection, not retribution. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.”

That cannot be the end of the inquiry, however; Congress has an important oversight role to play.  Yesterday, Sen. Patrick Leahy (D-Vt.) acknowledged that when he  reiterated his call for a “Commission of Inquiry” to “take a thorough accounting of what happened . . . to own up to what was done in the name of national security, and to learn from it.”

As Leahy put it:

The Office of Legal Counsel issues legal opinions that are binding on the executive branch.  With this awesome power comes the responsibility to provide objective unbiased advice – and to get it right.  We cannot continue to look the other way; we need to understand how these policies were formed if we are to ensure that this can never happen again.

Unfortunately, Leahy knows — and has admitted — that he does not have bipartisan support he needs to convene a broad “Commission of Inquiry,” and the Republican objections to such a plan have been voiced loud and clear. But Leahy also knows, as I’ve written before, that he does not have to wait to try to overcome those objections, while the clock is ticking on the statute of limitations for many of these shocking crimes — including torture.

As the chairman of the Senate Judiciary Committee, Leahy could announce today that the committee will convene its own investigation into how these legal memos came to be drafted, who ordered them, exactly what directions were given, and how and why the law was interpreted and manipulated to justify actions that even many Republicans now look back at with disgust and horror.

Although the Justice Department’s Office of Professional Responsibility has completed an inquiry into the OLC lawyers’ conduct, the attorney general has so far refused to release the results, and they’ve reportedly been sent to the former OLC lawyers for comments and amendments. That doesn’t exactly inspire confidence that the final product will provide an objective account of what happened, even if it is finally released.

There is no reason to wait any longer to learn what really happened.  The time for the Senate Judiciary Committee to investigate is now.

If warranted, prosecutions could follow.

I’m not trying to take any credit for The Times’ awakening on this issue, but I’m glad to see it is finally joining the party. As I’ve noted before (as did The Wall Street Journal), much of the mainstream media has been gingerly tip-toeing around these issues, making excuses for a new president who needs time to get his appointees in place and his policies on paper. But in the meantime, his Justice Department has been quietly pressing forward with some of the more controversial policies of the previous administration.

We’re talking about lawsuits over torture, warrantless wiretapping, state secrets and policies of extraordinary executive powers that allow the president to indefinitely detain suspected terror supporters abroad — and even here on U.S. soil.

Sure, the Obama administration announced it was withdrawing the use of the word “enemy combatant”, but as I’ve pointed out before, that’s more about semantics than substance. At the same time, the administration is asking the federal courts to stall their habeas corpus cases on the theory that the courts don’t have the authority to free these prisoners anyway.

I have to wonder if Obama — who, to be fair, has his hands full these days with the depressing economic legacy left him by the last administration — is being fully briefed on some of the more outrageous positions being taken in his name. If he’s not, he should be; after all, he’s the one who’s been saying that as president, he has to be able to take on more than one thing at a time.

As I wrote last week, the case of Al-Haramain Islamic Foundation v. Obama has showcased the Obama justice department’s willingness to fight tooth-and-nail to protect its authority to conceal information it deems a “state secret,” even if it’s covering up for actions of the prior administration. The purpose seems to be more about defending the executive’s right to assert the “state secrets privilege” to dismiss a case in the future, and to determine when classified information can or can’t be released to the public, rather than about protecting the specific information involved in the case, since, as I’ve explained before, we all pretty much know at this point what that information is. (The government accidentally provided it to Al-Haramain’s lawyers, who suddenly knew they’d been wiretapped and filed the lawsuit.)

As the Journal puts it, given the Obama DOJ’s assertion that the president alone has the right to decide when to release classified information, regardless of the orders of a federal judge, “we’re beginning to wonder if the White House has put David Addington, Mr. Cheney’s chief legal aide, on retainer.”

Even if the Journal is just beating up on Obama to discredit him (after all, it goes on to say it agrees with the Justice Department’s broad assertions), the editorial does raise an important question: are the Democrats (and the mainstream media) turning a blind eye to broad claims of executive power that they denounced just last week when similar theories of executive authority surfaced in Office of Legal Counsel memos produced under President George W. Bush?

As I’ve written before, Pelosi has been a bit cagey in the past about just what sort of criminal accountability she’s looking for.  She has previously mentioned holding former White House Counsel Harriet Miers and Bush aide and adviser Karl Rove — both of whom ignored congressional subpoenas while citing executive privilege — in contempt of Congress, as well as investigating the politicization of the Justice Department, but Pelosi has been relatively quiet on the authorization of torture by former Vice President Dick Cheney and former Defense Secretary Donald Rumsfeld.

Last night, Pelosi clarified her views a bit — sort of. Asked by Maddow if she’d support a ‘truth commission’ along the lines of the one proposed on the Senate floor yesterday by Sen. Patrick Leahy (D-Vt.), Pelosi said she supports an investigation, but she isn’t happy about providing immunity for Bush officials who broke the law. “I want to go forward but as we try to have reconciliation … I don’t think we should have immunity for some of those issues,” she said.

On one hand, this suggests that she’s even more gung-ho about prosecuting alleged criminal activity during the Bush administration than most members of Congress. But as Maddow pointed out later, that view also gives Pelosi a convenient excuse to oppose the Leahy truth commission, just as it’s gaining momentum — not only in Congress, but with the American public. That could be a way to prevent an in-depth investigation into exactly how it is that the U.S. government came to authorize the torture of terror suspects — including the role of Democrats who were briefed on the CIA’s tactics.

Not one to let such things go, Maddow specifically asked Pelosi about that as well. Pelosi’s response?

Sure, Pelosi said, some Democrats were briefed, but “they did not brief us that these enhanced interrogations were taking place … they were talking about an array of interrogations that they might have at their disposal.” In other words, the Bush administration briefed Democrats that they might use waterboarding and other “enhanced interrogation techniques” involving abuse and humiliation, they just didn’t tell the Democrats that they were already using those tactics.

Frankly, I’m not sure what difference that makes. So what if she knew that they might use waterboarding the next day, but hadn’t used it yet?  Pelosi’s subsequent point, that there was no way for the Democrats to object publicly about those techniques if they were unhappy about them, seems to me more valid. That is, after all, what a classified briefing means: you can’t talk about it later.

Pelosi said she’d like to change that:

These are issues you can’t even talk to your staff about. And that just isn’t right. Because it gives all the cards to the administration. And if you say anything about it you have violated national security … and that’s what we’re going to change. You don’t want any president, Democrat or Republican, to have that kind of authority.

No, we don’t. Because we’ve already seen the consequences. If we take Pelosi at her word,  she’s now supporting prosecution of former Bush officials for all sorts of lawbreaking, as well reforming restrictions on how members of Congress can use classified information to object to the executive’s tactics.

In the end, though, who knew what, when and why it all happened still remains muddled. It sounds more and more like both a truth commission that gets at the whole story AND targeted prosecutions based on the evidence that comes out, is going to be the best way to move forward. However, as human rights lawyers have pointed out to me (and as I discussed with Rachel Maddow on her TV show last week) the two really have to happen simultaneously. Otherwise, given the strict statutes of limitations on torture and other federal crimes, we could end up with a thorough report on senior Bush officials who broke the law, and no way left for the government to prosecute them for it.

Of course, it will take some convincing to get a majority in Congress — not to mention President Obama — to agree to that; but the American public, according to the latest polls, is already well on its way.

It seems Americans have taken to heart the much-cited mantra that we’ve now heard from both Pelosi and the new president: “No one is above the law.”

Cheney last week even admitted he personally approved waterboarding — i.e., torture — setting the stage for President Bush to issue a pardon, insisting that in the process he’d saved American lives.

Cheney must know that claim rings hollow: even the recent bipartisan Senate Armed Services Committee Report found just the opposite, concluding that the administration’s interrogation techniques “damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.”

Still, it was a convenient public excuse offered up to give Bush cover for issuing a pardon, not only to Cheney but to everyone involved in approving torture and other illegal interrogation methods.

Some Democrats, at least, are trying to prevent that.

On November 20, Rep. Jerrold Nadler introduced H.R. 1531 to urge Bush not to pardon himself or his co-conspirators in war crimes. The bill now has 9 co-sponsors.

Democrats.com is collecting signatures to support the bill, and circulating a petition to support another bill, sponsored by Rep. Jerrold Nadler, Sen. Carl Levin, and VP-elect Joe Biden – urging Eric Holder, as the future Attorney General, to open an investigation.

”The vice president alone may determine what constitutes vice presidential records or personal records, how his records will be created, maintained, managed and disposed, and are all actions that are committed to his discretion by law…”

I’m not a lawyer, but I’m sure the legal grounds for such a contention are as sound as those previously employed by Cheney lawyer David Addington for such run-of-the-mill executive-branch behavior as warrantless surveillance, torture, and indefinite detention. Oh, wait, Cheney is his own branch of government.

Charlie Homans is right: the vice president’s office and residence needs to be treated like crime scenes. Cordon it off with yellow tape and make the Cheneys get a room at a Red Roof Inn until it’s secured.  Cheney has proven for eight years that he will stop at nothing to avoid accountability. This is the public-disclosure version of shooting an old man in the face.