The central debate dominating discussions of a possible investigation into torture by the Bush administration seems to have shifted sharply in the past few days: from whether such an investigation should take place, to now what form it will have when it comes.
If investigations actually do go forward, there seem to be three clear options: creating an independent commission, launching a congressional probe, or having the Department of Justice tackle the topic, likely by appointing a special prosecutor.
Each form has its champions, its benefits and shortcomings. Of the three, the Obama White House -- which still prefers no investigation at all -- is the least enthusiastic about Congress handling the matter. The president has said that if an investigation were to happen, he wanted it done in an independent and non-partisan matter by people above reproach -- qualities sometimes tough to come by in Congress.
That said, on Thursday morning, Sen. Claire McCaskill told MSNBC that she was "sure there will be some form of investigation in Congress." She said she could not make the same value judgments about the other two forms of investigation.
Meanwhile, one of the few legislative vehicles actually geared toward starting the torture investigation process already has bipartisan support. Legislation backed by House Judiciary chairman John Conyers to establish "a national commission on presidential war powers and civil liberties" has one rather notable co-sponsor: Republican Rep. Walter Jones, a vocal GOP critic of the Bush administration. Jones' office did not return requests for comment but Conyers' office confirmed the North Carolinian remains a co-sponsor of the legislation.
The chairman himself said he views Obama's remarks on the suitable way to investigate torture to be something of an endorsement of his proposal.
"The President's comments today on possible approaches to a fuller accounting of these matters are exactly right," remarked Conyers in a statement. "Having introduced legislation to establish just such a non-partisan truth-telling Commission on the very first day of this Congress, that is the approach I have long favored."
The same cannot be said, at this juncture, of the other congressional proposal for investigations. Senate Judiciary chairman Patrick Leahy's truth and reconciliation commission is not, at this point, formal law and its support is primarily from figures outside government.
As for Democratic leadership in Congress, Sen. Harry Reid's office confirmed to the Huffington Post on Thursday that the Majority Leader is withholding judgment until the Senate Select Committee on Intelligence finishes its own report on interrogation policies.
Perhaps the people best suited to envision what a torture investigation might look like are those who participated in one of the last big investigations. Daniel Marcus, a law and government professor at American University, served as the general counsel to the 9/11 Commission. In an interview with the Huffington Post, he said that the effort to look into the cause and intelligence failures of that terrorist attack were different from what would or could be done when looking into the Bush administration's policies on detainee treatment.
"The parallels are not exact here," he said. "I do think that we and the world already know a lot about what happened [with the use of torture] and we now, as a matter of policy, have repudiated what was done, said it was illegal, and said we are not going to do it anymore. So it is a different kind of situation than the 9/11 commission where no one knew what the hell had happened, what went wrong on 9/11, what happened, why was our intelligence so wrong..."
There were also, Marcus noted, fundamental differences over the scope and goals of the 9/11 commission, and those disagreements would surely accompany an investigation into torture (which would be more retributive in nature). In this regard, the major news regarding the investigation could come before the process even begins.
"There are two problems," said Marcus. "One is that, if you don't want to foreclose criminal investigations, you are going to have a hard time getting testimony to people without giving immunity. And the commission can't grant immunity unless it is under their statute. On the other hand, if you give immunity you may be fouling up potential criminal investigations. So you have to decide what approach makes sense here: whether it is more important to have a let it all hang out truth commission which would hold people accountable but make it less like for criminal prosecution, or whether to pursue the criminal prosecution route."
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