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.

Scott Horton reports on the case and provides links to all the court documents on The Huffington Post.

Azar claims he was threatened and coerced into signing a confession in ways that amounted to torture. He says he was hooded, strip-searched, photographed naked, exposed to extreme cold and sleep-deprived. He also alleges that while he was driven to the U.S. prison at the Bagram air base, a federal agent “pulled a photograph of Azar’s wife and four children from his wallet” and said he’d better confess to bribing a contract officer if he ever wanted to see them again.

The government denies that charge and calls Azar’s claims of torture “hyperbolic.”

Horton’s sources tell him that the decision is to be announced today in a Spanish criminal court. The prosecutors reportedly will also ask Judge Baltasar Garzón, who has gained an international reputation for prosecuting other high-profile torturers, to step aside. Apparently, they think it’s awkward that he’s also presiding over the terrorism case of five Spaniards who were held at the U.S. detention facility at Guantanamo Bay — and might have been tortured there. Others want Garzon to step aside apparently out of concern that some in the U.S. media, which have derisively covered some of the judge’s previous prosecutions of foreign officials — such as former Chilean dictator Augusto Pinochet — might view his focus on prosecuting torture as “a sort of personal frolic of Judge Garzón,” Horton reports.

While the indictments expected today are sure to put a crimp in any vacation plans to Spain for the six former Justice Department lawyers — in addition to Gonzales, they include former Office of Legal Counsel lawyers John Yoo and Jay Bybee, as well as Vice President Dick Cheney’s former chief of staff, David Addington — more importantly, it’s sure to ratchet up the pressure on U.S. lawmakers to respond to the growing body of evidence that senior American officials broke the law.

Yesterday, CBS News legal analyst Andrew Cohen came out in support of a truth commission along the lines of what Sen. Patrick Leahy (D-Vt.) has suggested. But as I’ve noted before, Leahy himself has expressed doubts that that’s ever going to happen, since he can’t seem to win any Republican support for it. (By the way, where’s Sen. John McCain on this?)

While Congress is hashing this all out and mulling over the latest foreign justice system courageous enough to stand up for international law — after all, the United States is under international treaty obligations to prosecute torture — Leahy and his Senate Judiciary Committee could, at the very least, convene an investigation of precisely what role the Bush Six lawyers and the rest of the Justice Department played in developing an illegal interrogation and torture policy. That would be the perfect complement to the ongoing investigation of the CIA’s role by the Senate Select Committee on intelligence, and to the Senate Armed Services Committee’s probe into the Pentagon’s role — which destroyed the “bad apple” myth and revealed that the orders came from the top.

I’ve been told there’s some support for the truth commission idea among Democrats on the Judiciary Committee, but Leahy, the committee chair, is still not aggressively pushing it.

We’ll be watching to see if the Spanish prosecution — or the additional OLC “torture memos” that may (finally) be released later this week in a FOIA case brought by the American Civil Liberties Union — changes that dynamic.

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The appointments of Dawn Johnsen, nominated to head the same Office of Legal Counsel that produced those memos (and who’s been strongly critical of the office’s work in the past), and of Harold Hongju Koh, the illustrious Dean of Yale Law School who has been tapped for State Department legal counsel, hang in the balance. Both have already been publicly attacked by conservatives as extreme leftists for, in Johnsen’s case, criticizing the torture memos and supporting the right to an abortion, and in Koh’s, for being a strong advocate of international law. (Dahlia Lithwick at Slate recently catalogued some of the more absurd attacks in her own defense of Koh.)

Horton wrote of the current political struggle:

“Senate Republicans are now privately threatening to derail the confirmation of key Obama administration nominees for top legal positions by linking the votes to suppressing critical torture memos from the Bush era. A reliable Justice Department source advises me that Senate Republicans are planning to “go nuclear” over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public. The source says these threats are the principal reason for the Obama administration’s abrupt pullback last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward.”

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.

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.

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.