Perhaps. But according to the Senate Select Committee on Intelligence’s declassified narrative on torture, Rice, as national security adviser in 2002, was the highest-ranking Bush official to approve torture as a “policy” matter. That approval came on July 17, 2002, before the Justice Department’s Office of Legal Counsel gave its legal imprimatur to the torture of Abu Zubaydah. Now, people change their minds all the time, so maybe that’s what happened to Rice, particularly as she became secretary of state and saw what the international outcry from Abu Ghraib meant for U.S. diplomacy. But that’s conjecture. How did the Rice of 2002 evolve into the Rice of 2005 on the issue?

I asked Zelikow after the hearing ended, but he was circumspect. “I did not interrogate Dr. Rice about anything she did in the first Bush administration,” he replied. But he said it would be “useful to find out how the [CIA interrogation] program was understood” by Bush administration policymakers, adding that his experience suggested it was “sold incrementally” to them. The implication — sympathetic as it is to Zelikow’s former boss — is that Rice may not have fully understood what CIA Director George Tenet was asking her to approve.

He was particularly disturbed, he testified, by this implication of the memos: “If the CIA program passed muster under an American constitutional compliance analysis, then a program of this kind would pass American constitutional muster if employed anywhere in the United States on American citizens.”

His memos to administration officials expressing his concerns were not only ignored, but destroyed, he said.  He added that they have since been “found” and are now being reviewed for declassification.

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.

Former State Department adviser Philip Zelikow’s testimony could go a long way toward revealing how his contrary advice — he says he warned Bush administration officials that the torture and abuse of prisoners as illegal — was ignored by the lawyers and policymakers in charge. The key, though, would be getting those lawyers and policymakers to testify about why they ignored it.

The Senate Armed Services Committee Report, as I wrote yesterday, is chock full of evidence that standard legal doctrine, as well as contradictory legal opinions from military lawyers who are experts on international humanitarian law, was deliberately ignored or dismissed.

And the Office of Legal Counsel memos that sanctioned the brutal interrogation policies so blatantly twisted the relevant law, as even Republican legal scholars such as Jack Goldsmith have acknowledged, that they raise serious questions about whether the memos were written in the “good faith” required.  Sure, “the political officials would say they believed what they were doing was lawful,” as Professor Posner told the Times, but if the evidence shows that they instructed their lawyers to reach specific conclusions and to ignore law that dictated otherwise, then a jury may well not believe them.

And what to make of the recent revelation that the former aide to Condoleeza Rice, Philip Zelikow, submitted a memo to the State Department insisting that the abusive interrogation policies under consideration and approved by the OLC lawyers were clearly illegal?  The issue here isn’t that someone disagreed with their policies; it’s that, according to Zelikow: “The White House attempted to collect and destroy all copies of my memo.”

Can there be any better evidence of “bad faith” than seeking to destroy evidence of contradictory legal opinions?

President Obama may have all sorts of good reasons for not supporting a broad-ranging “truth commission” that inquires into the breadth of Bush administration policies in its war on terror, as he’s claiming now.  But he has said that he’s not opposed to a criminal investigation of the lawyers who approved those clearly illegal policies and how they reached their conclusions.

Given the wealth of evidence that’s come out that those conclusions were not reached objectively or in the “good faith” that’s required, that’s one investigation that’s clearly warranted.