A 29-year-old Australian, Melissa Dunphy, wrote the opera in part because she felt sorry for Gonzales, as she tells the Wall Street Journal. It’s called The Gonzales Cantata.

“I wrote the piece as an exploration of someone who’s having a hard time arguing his way out of a situation,” she says. “I think had Dick Cheney or Don Rumsfeld been put in the same situation, they could have acquitted themselves much better. But Gonzales, it appeared to me, didn’t have wit or the foresight about him to wriggle his way out of it.”

That’s for sure.

Scott Horton says an opera is a fitting way to capture the Gonzales tragedy: “The career path of Alberto Gonzales provides perfect material for an opera in the tradition of George Frederick Handel. It has its earnest moments, flashes of heroism (involving Gonzales’s victims, of course, not the protagonist), and yet there is a steady undercurrent of opera buffa.”

Gonzales is played in the opera by a female soprano, part of a “protest of male domination of American politics,” as Dunphy explains on the opera’s Website.

“At the end of investigating is the time when you decide who to prosecute. You don’t decide who to prosecute before you investigate.”

That is the normal course of how investigations work. And that’s why Attorney General Eric Holder announced that he was opening a “preliminary review” into certain cases of extreme detainee abuse; notwithstanding the conventional wisdom based on plenty of cheap political analyses to the contrary, Holder didn’t say that the investigation would be limited to looking only at the actions of specific individuals.

As I’ve argued before, that investigation, if done properly, could eventually lead to investigating the actions of individuals higher up the chain of command. “When you’re talking about high-level officials,” says Abdo, “it’s important to investigate whether the attorneys were providing high level legal advice, or providing legal cover to the decisions made by high level officials.”

Interestingly, as Abdo and others point out, the CIA inspector general report released on Monday did not mention anything about high level officials. Or at least the parts of the report that were not blacked out didn’t talk about the role of the White House or other senior officials. Yet we know from previously released documents that the White House and senior officials were closely involved in the decisionmaking about interrogations.

“You would think it would be in the report because the report discusses the origin of the CIA’s enhanced interrogation technique program,” says Abdo. “And that’s relevant to whether the CIA thought it needed these techniques, or whether they were handed to them by high level officials.”

Lawyer and blogger Scott Horton made a similar point when he appeared with me on MSNBC’s Live with Carlos Watson yesterday. And he laid out the case against Cheney that may be hidden behind that black magic marker in his blog at Harper’s:

All trails lead to the Vice President’s office. At several points, redactions begin just when the discussion is headed toward the supervision or direction of the program and context suggests that some figure far up the Washington food chain is intervening. Moreover, as Jane Mayer recounts in Dark Side, Helgerson’s report was shut down when he was summoned, twice, to meet with Dick Cheney, who insisted that the report be stopped. Cheney had good reason to be concerned. This report shows that the vice president intervened directly in the process and ensured that the program was implemented. The OPR report likewise shows Cheney’s office commissioning the torture memos and carefully supervising the process. It is increasingly clear that torture was Dick Cheney’s special project and that he was personally and deeply involved in it. And the CIA report has some amazing nuggets that show Cheney’s hand. In 2003, after Jay Bybee departed OLC, Cheney struggled to have John Yoo installed as his successor, but ultimately John Ashcroft’s candidate, Jack Goldsmith, prevailed. Goldsmith quickly backtracked on the torture authorizations that Yoo and Bybee gave. The result? The CIA stopped taking its cue from OLC and instead turned to the White House for guidance. It is remarkably vague on the particulars, and blackouts emerge just as passages seem to be getting interesting. But there’s little doubt that Dick Cheney and his staff were pushing the process from behind the scenes.

What a surprise that Cheney is now the most vocal critic of Holder’s decision to appoint a prosecutor to conduct a “preliminary review.”

Abdo said the ACLU is still deciding whether to challenge the government’s redactions of the inspector general report. If it does, the judge would review what’s been blacked out and decide if it was properly classified, or if it was simply redacted to protect the government from embarrassment or conceal evidence of criminal conduct.

I marvel over Dershowitz’s new-found perspective on academic freedom. Can this be the same Alan Dershowitz who launched a massive and successful campaign against Norman Finkelstein to deny him tenure at DePaul University because of his criticism of the Israeli government and of Alan Dershowitz himself? In the Dershowitz perspective, academic freedom apparently shields those whose viewpoints are very close to his own, but not his critics.

Dershowitz was one of the early supporters of the idea that torture might very well be a good idea on people we suspect of terrorism — only, of course, in that theoretical ticking time bomb case, where interrogators somehow know that the person they’re torturing could save us all, if they just torture him brutally enough.

None of this has affected Dershowitz’s tenured position at Harvard — but then, he wasn’t writing memos for the Department of Justice authorizing torture and other techniques of brutality that plainly violated domestic and international law.

For now, Yoo is a “Distinguished Visiting Professor of Law” at the illustrious Chapman University School of Law in Orange County, where his friend, Dean John Eastman, had to issue a public apologia explaining the appointment, saying that even if most scholars think Yoo got the law wrong in his memos authorizing torture, some disagree, or think he “at least made a fair stab at it.”

That’s a pretty low bar to set for a tenured professor at one of the nation’s top law schools. And if the Department of Justice ever issues that internal Office of Professional Responsibility memo that’s still awaiting Attorney General Eric Holder’s approval, Yoo may find himself depending on the kindness of his friends in Orange County for far longer than he anticipated.

Horton, a prominent national security and human rights lawyer, is not on some crazy left-wing rant.  He’s just analyzing the substance of the recently-released Office of Legal Counsel memos.

As we’ve written before, those memos handed the president of the United States extraordinary powers to use the military against U.S. citizens on our own soil, to ignore the Bill of Rights — particularly the First and Fourth Amendments, which are key to basic notions of liberty and freedom from unreasonable government power — and to insulate the executive’s actions from congressional and judicial oversight.

Voila! — we have a dictatorship. It’s the remarkably logical conclusion. Check it out here.

Mohamed, readers will recall, is the British Ethiopian-born Gitmo prisoner first abducted in 2002 in Pakistan and tortured over the next two years in various secret and foreign prisons. He’s been seeking evidence in the United Kingdom to support his claim that he was tortured, which he could then use to exclude any tortured confessions in a future trial, or to help him win damages, which his lawyers are seeking on his behalf in a court in California. (As I wrote earlier, the Obama Justice Department is, like the Bush Justice department before it, trying to get the case dismissed based on the “state secrets” privilege.)

The British court recently denied Mohamed’s request to publish a summary of his torture by U.S. authorities because the U.S. government, first under Bush and then under Obama, insisted it would endanger American national security — and threatened it would harm U.S.-British relations.

Though everyone quickly denied that the United States had threatened British authorities, it seems pretty clear  that’s exactly what they did.

Now, according to The Guardian, the British court has agreed to re-open Mohamed’s case.  And his lawyer, Clive Stafford Smith from the British group Reprieve, has written to President Obama, taunting him that his own secretary of defense isn’t allowing Obama to see the evidence of Mohamed’s “truly medieval” abuse at the hands of U.S. authorities.

Meanwhile, Mohamed is reportedly being prepared for release from Gitmo to the United Kingdom, without ever having been tried.

Maybe he wasn’t such a dangerous terrorist after all.

So does it matter if the interrogation techniques that were used, authorized and encouraged by senior officials in the US government for use on suspected Taliban or al Qaeda detainees – as confirmed by the recent Senate Armed Services Committee Report on the Treatment of Detainees in US Custody – are called “torture”?

You bet it does.

The role of language in the ongoing debate over what to do about the Bush administration’s authorization of torture and other “extreme” interrogation techniques was the subject of a thoughtful discussion last night in New York sponsored by PEN America and the American Constitution Society.

New Yorker writer Jane Mayer, author of the highly influential book, The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals, warned against getting hung up on the label “torture” and focusing instead on the fact that either way, this was “deliberate cruelty” and morally wrong.

But as every lawyers knows, there are consequences to the language used. The advice of lawyers may well be why, as the lawyer and Harper’s writer Scott Horton observed last night, much of the mainstream news media, including such supposedly liberal-leaning newspapers as The New York Times and The Washington Post, have steadfastly refused to use the word “torture” — even when describing waterboarding, stress positions, sleep deprivation and other interrogation techniques that were used by US officials on detainees and have long been considered torture by US authorities.

As I’ve written before, waterboarding in particular has for more than half a century been prosecuted by US authorities as a form of unlawful torture. A US federal judge has publicly made the same point. (And VP Dick Cheney recently admitted to authorizing it.) Still, producers for PBS’s Jim Lehrer News Hour told Horton, as he was being prepared to appear on that show recently, that he musn’t rush to judgment in describing the techniques while on camera. Using the word “torture” on the show, Horton understood, was verboten.

The result is that the mainstream media has allowed the Bush administration to give itself a pass, to whitewash what it did as “harsh,” “tough,” or “extreme interrogation” — which after all doesn’t sound unreasonable in a war against terror – and to consistently deny that this conduct violated the law.
As Goldsmith wrote in his book, The Terror Presidency, quoted in the recent Senate report, Bybee’s memo essentially said to administration officials: “Violent acts aren’t necessarily torture; if you do torture, you probably have a defense; and even if you don’t have a defense, the torture law doesn’t apply if you act under the color of presidential authority.”

The Administration’s lawyers – Bybee, David Addington, John Yoo and AG Alberto Gonzales – all knew full well that it matters what you call it. Because if the defense of “acting under presidential authority” fails – in other words, if it turns out that the president is actually required to follow the law – then if they’d committed torture, in violation of the federal torture statute, the Geneva Conventions and the UN Convention against Torture – then they could all be in big trouble.

That is, of course, what many of them are probably worried about now, and why legal scholars and human rights advocates worry that the Bush administration will issue a blanket pardon to everyone who was involved.

After all, a lame duck can still lay eggs.

On Thursday, House Judiciary Committee Chairman John Conyers, Jr. (D-MI) and Constitution, Civil Rights, and Civil Liberties Subcommittee Chairman Jerrold Nadler (D-NY) wrote to Mukasey asking him to provide the factual basis for that assertion. The letter noted that Mukaseys comments were hard to square with the record of substantial internal objections to these policies, and were inappropriate given that there are several ongoing investigations looking at precisely these same questions.

As the letter reads: “The public record reflects ample warning to Administration officials that its legal approach was overreaching and invalid, such as repeated objections by military lawyers to Department legal opinions on interrogation issues and the stark warning by then-Deputy Attorney General James Comey that the Department would be “ashamed” if the world learned of the legal advice it had given on torture issues. Indeed, FBI interrogators were so troubled by some approved interrogation methods that they refused to participate, as the Department’s own Inspector General has described.”

At a packed forum at NYU Law School last night addressing the same topic, Hofstra law professor and Harper’s contributor Scott Horton offered that Mukasey is trying to “bait Obama into saying that there won’t be prosecutions, we’ll let bygones be bygones.”  Obama is not likely to take that bait, though.

Indeed, Obama and his transition team have been so tight-lipped about what they’ll do about crimes committed under the Bush administration, and Bush has been so elusive about what he might do on the pardon issue, that it had led to all sorts of energetic speculation on the subject. Much of this debate was on display at last night’s forum, which attracted several hundred attendees and left dozens more outside and clamoring to get in.

While Horton reiterated his call for a commission to investigate, which he laid out in detail in this month’s Harper’s, Michael Ratner, president of the Center for Constitutional Rights, insisted a commission is too slow, complicated and prone to coverups, and only a special prosecutor can do the job. Nadler, also on the panel, seemed to advocate for both, while NYU law professor and Brennan Center legal director Burt Neuborne suggested the more conciliatory truth and reconciliation commission approach, which would expose but not prosecute abuses, should also be considered.  But as Ratner responded, citing a comment recently made to him: “Imagine if at Nuremberg we had had a truth commission and not a prosecution?”  Doesn’t really have the same historical impact — or deterrent effect.

Elizabeth Holtzman, the former congresswoman and author of the book, “The Impeachment of George W. Bush,” warned that “If we don’t act to address this problem,” referring to executive lawbreaking, “we will be beset with this problem again and again.”

General Anthony Taguba, the retired military general who wrote the scathing 2004 report on Abu Ghraib, calling the conduct there not only “sadistic” but “criminal,” also made some interesting points. He noted, in carefully tempered remarks, the disconcerting fact that the the government passed laws protecting senior government officials from prosecution, then directs soldiers in the military to follow the Geneva Conventions and international law. What kind of a message does that send to our troops?

All in all, a convincing set of arguments that ultimately weigh in favor of both a special prosecutor to investigate specific instances of criminal wrongdoing, and an investigatory commission to look more broadly at how the Bush administration went down this path in the first place and how to keep it from happening again.

As Neuborne noted, employing his usual eloquence (as I recall from the days when he was my fed courts professor), “we have a panic button in the Constitution” that has led to constitutional transgressions by US officials during wartime far too often in American history.

Something must be done – whether in the form of criminal prosecutions, truth commissions or perhaps lawsuits for civil liability and monetary damages — to deter government officials from pressing that button so reflexively in the future.

The lawyer and writer Scott Horton, in an excellent feature in the December issue of Harper’s, lays out the Obama administration’s options. Horton points out that there is a long litany of potential crimes the new administration could go after -– from using the Justice Dept. for political purposes to issuing no-bid military contracts to corrupt companies.

But the most obvious crime that’s prime for prosecution is officially sanctioned torture.

Advocates like Glenn Greenwald, writing in Salon, have harsh words for former Clinton Justice Dept. officials like Robert Litt, now advising Obama not to prosecute Bush officials and risk appearing vindictive and divisive. Litt and others, including influential Obama advisers like Cass Sunstein, have suggested they don’t want Obama to squander the good will he’s generated from both sides of the aisle.

As I wrote earlier, lots of others have been offering the same sort of advice. Meanwhile, some law professors, like George Washington’s Jonathan Turley, who even supported the impeachment of President Bill Clinton, have made a persuasive argument that we can’t tolerate law-breaking by public officials.

But I think Horton, who’s a master of the law and history on this subject, may have the best answer: a commission created by the president that would investigate what happened and recommend prosecution if the facts warrant it. The commission should be nonpartisan –- made up of career prosecutors, lawyers and assistants, rather than political officials and operatives like the 9-11 commission, which lost credibility when its conclusions were watered down and subsequently attacked from all sides.

Last week, human-rights advocates from UC-Berkeley and the Center for Constitutional Rights made a similar recommendation in a new report about the impact of Bush administration interrogation tactics on Guantanamo detainees.

If the new president authorized and supported it, the commission’s recommendations would be far harder to ignore than were, say, those of the 9-11 commission. If prosecution is ultimately warranted, the president would be under considerable pressure to follow through.

What’s more, it would look like an impartial administration of justice. Not like a new administration launching a retributive, divisive and partisan attack.

As I wrote last week, closing Guantanamo Bay is a good first step, but it doesn’t go far enough. The new Obama administration is going to have to take more affirmative steps to end U.S.-sponsored abusive detentions and interrogations around the world, and to send a clear message that the United States, including the president, can be trusted to follow the rule of law.

Creating a commission to investigate whether the Bush administration abused that trust would go a long way toward making that message credible.