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First, as a legal matter, the issue, as set out by the Second Circuit Court of Appeals in its September 2008 decision, boils down to whether the release of the photos will endanger the life or physical safety of “any individual.” The court held that if the government can’t name any particular individual that would be put at risk, then it can’t rely on that exception to the FOIA rule.

Well, that’s one interpretation. But if, as the district court concluded, it is likely to create a real safety risk to a whole group of individuals whose names you don’t know, does that mean the court should go ahead and release them anyway?

We can reasonably argue, of course, about whether releasing more photos will actually risk the safety of any U.S. soldiers, given that the Abu Ghraib photos and the torture memos and all sorts of related gruesome information about what American interrogators did to terror suspects are already out there. But it’s not crazy to think that 200 more graphic depictions of abuse and humiliation of Muslims at the hands of their American captors could cause a bit of an uproar that could incite additional violence.

Shouldn’t the real question be, as the district court thought it was, whether the risk outweighs the value of the new information revealed by the photos?  If they’re just more graphic depictions of acts we already know occurred, does it really further the public’s “right to know” — or our “core values” as the district court put it, or does it just fuel news organizations’ thirst for sensational gore? I know that’s not what the civil libertarians are after here, but I think it’s fair to ask the court to look at the photos and decide if they really provide valuable information, or are more akin to gruesome photos at a crime scene which we wouldn’t necessarily have a right to see either.

The Second Circuit concluded that “public interest in disclosure of the photographs is strong,” simply because they depict government wrongdoing, regardless of whether they add any new information.  But it didn’t weigh that interest against the risk of harm to U.S. personnel overseas.  Obama — about whom I’ve been critical on many other things — seems to be suggesting that the safety of Americans abroad is a real concern, and that if the photos don’t reveal new information, they’re not worth releasing. I’m not sure I agree with where he comes down on the risk-benefit analysis, but I think it’s an analysis worth undertaking.

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.”