Even as the issue of torture appears likely to burst back onto the public agenda next week -- thanks to the much anticipated release of an internal CIA report -- one of the most progressive voices in Congress is arguing that the Obama White House has a legal obligation to investigate the Bush torture legacy.
New York Congressman Jerry Nadler, a senior Democrat on the House Judiciary Committee, told the Huffington Post that he believed that President Obama would be breaking the law if he decided to oppose launching investigation into the authorization of torture.
"If they follow the law they have no choice," Nadler said in an interview this past weekend.
The logic, for Nadler, is straightforward. As a signatory of the convention against torture, and as a result of the anti-torture act of 1996, the United States government is obligated to investigate accusations of torture when they occur in its jurisdiction.
The alternative, Nadler said, "would be violating the law. They would be not upholding the law; they would be violating it."
Nadler said that a special prosecutor should handle the task, because some of the likely subjects of such an investigation worked in the Justice Department. "There is an inherent conflict interest," said Nadler," which is why you must appoint a special prosecutor. But, again, you have no choice because that's the law."
Respected by his colleagues as one of the sharpest legal minds in Congress, Nadler has taken a leading role in pushing the Obama administration to investigate its predecessor. Beyond the legal requirements, he argues that there is a moral and political imperative - lest the precedent be set that potential illegalities go un-probed. In recent weeks, Attorney General Eric Holder has hinted that he would support a special prosecutor to look into the narrow issue of whether some interrogators exceeded their instructions. But Nadler is far from satisfied with what he's seeing from DOJ.
"[Holder] was strongly inclined to support a special prosecutor," he said. "But not for the lawyers who wrote the memos justifying the torture, and not for anybody who acted within the scope of those memos; only for some local level guy who acted beyond the scope of those memos, who waterboarded with too much water or whatever."
"You must not limit it that way," he added. "Again it would be against the law to do it because you have got to investigate everybody involved in torture or in a conspiracy to order torture."
But Nadler is no dupe. He recognizes that this matter is complicated by politics. He says his major concern is not whether the Obama administration sees the legal rationale for such an investigation, but rather whether it has the political fortitude for tackling such a task.
"If you start prosecuting the Bush people," Nadler said, "you know what is going to be said? What's going to be said is, this is politically motivated payback for the Clinton impeachment. That is what they are going to say."
"And you know that if you do this, there is going to be a tremendous pushback starting with Fox News and everywhere else," he added, "not on the merits but on the political motivation of the Obama administration for vengeance... Who needs that? So from a political point of view it is the last thing you want to do. From a point of view of reestablishing justice in this country, it is essential."