For those legal, media and political figures who favor an investigation and/or prosecution of the Bush administration for the torture of detainees, the recent spat over what members of Congress knew and when they knew it has become a bit maddening.
As attention shifts toward the extent to which House Speaker Nancy Pelosi oversaw the authorization and use of waterboarding, some are asking: Aren't we missing the forest for the trees?
"We are already so far widely away from the Constitution and the rule of law that it is staggering to discuss degradations here," said Bruce Fein, an associate deputy attorney general under Ronald Reagan and fierce critic of Bush's national security policies. "The staggering thing here is we have a former president and vice president who have said, 'Yes, we have authorized torture.' We have a President and Attorney General who have said 'Yes, waterboarding is torture.' And we have a torture statute that strictly defines waterboarding as torture.... We have a clear confession to one of the most serious crimes in the criminal code and what was happening? Absolutely nothing."
Added MSNBC's Ed Schultz during his opening segment on Thursday night: "Democrats are not the issue. Nancy Pelosi is not the issue. The issue is, who came up with the torture policy? Who broke the law?"
Indeed, in private conversations, Democratic strategists are bemoaning the fact that the harsh questioning of Pelosi has begun to overshadow the fact that torture was authorized in the first place. "It is a debate on Cheney's terms," as one Hill aide put it. To drive home the point, the source pointed to a New York Times oped from earlier in the week by Vicki Divoll, a former deputy counsel to the CIA Counterterrorist Center, who argued that a debate over Congress' role was somewhat irrelevant.
"It's logical to ask, so what if it was only four members?" Divoll wrote of the torture briefings. "If they objected to the program, why didn't they take steps to change it or stop it? Maybe they should have tried. But as a practical matter, there was very little, if anything, the Gang of Four could have done to affect the Bush administration's decision on the enhanced interrogation techniques program. To stop it, they needed the whole Congress."
And yet, not everyone feels that way. The House Speaker faces criticism for a failure to object more strongly to the use of waterboarding, even from those who say she shouldn't be the center of debate. "Pelosi," said Fein, "should have done what Mike Gravel did with the Pentagon Papers." (That is, Pelosi should have read the information she had on waterboarding into the congressional record.) "The speech and debate clause of the constitution would have given her immunity and legal protection."
Pelosi also faces a fresh round of rebuke for being willing to go only so far now in an effort to investigate the potential illegalities of the Bush years.
"In this case," said Jonathan Turley, a law professor at George Washington University, "Pelosi is charging that she was knowingly misled about a war crime. Now the problem with her latest explanation is that it is hard to express outrage over false statements regarding war crimes when you have personally blocked the investigations of the war crimes."