What did Congressional Democrats know, and when did they know it?

Is it possible that many Democratic leaders have been informed by the Bush administration over the years about its doubtfully legal activities?

If so, are they therefore complicit in the Bush administration's lawlessness?

It's just been disclosed that Representative Jane Harmon and House Speaker Nancy Pelosi were briefed by the Bush administration on the use of waterboarding. Harmon objected but Pelosi did not -- and when she became speaker of the house, she rejected Harmon for chair of the House Intelligence Committee.

The Administration has frequently responded to charges of Executive usurpation by saying the Congressional leaders were fully briefed on such questionable practices as NSA surveillance, extraordinary rendition, and enhanced interrogation techniques.

And evidence is mounting that they were. According to the Washington Post, since 2002 leading Democrats lawmakers received "about 30 private CIA briefings, some of which included descriptions of waterboarding, overseas rendition sites, "and other harsh interrogation methods." Officials present at some of the meetings, told the Post that the reaction from legislators "was not just approval, but encouragement."

If so, it would answer one of the great mysteries of 2007. The Democrats, once in control of Congress, had the courage to pursue cutoff of funds for the Iraq war, even though the Bush administration was happy to take advantage of their effort by characterizing it as failure to support the troops. The obvious companion strategy would have been to conduct intensive investigations to show that the entire Bush project has been to subvert law and Constitutional government in the interests of aggrandizing power nationally and internationally.

But Congressional Democrats have systematically avoided serious investigation of Bush administration lawlessness, and so far have retreated from using the power of contempt when the Bush officials have refused to respond to subpoenas.

Could this be because some Democratic leaders in effect colluded in Bush administration crimes -- knew about them but failed to report them?

Senator Joseph Biden has just called for the appointment of an independent counsel to investigate the destruction of the terror tapes. But Senator Jay Rockefeller, chairman of the Senate Intelligence Committee, opposes this, telling the Associated Press "I don't think there's a need for a special counsel, and I don't think there's a need for a special commission. It is the job of the intelligence committees to do that."

But if Congressional Democrats may be complicit in the Bush administration's crimes, isn't this a proposal that Rockefeller and his fellow members of Congress be allowed to investigate themselves?

The same logic applies to other cases of Bush administration lawlessness. According to Seymour Hersh, for example, the NIE report on Iran has been suppressed for months by Dick Cheney. It's hard to believe that Democratic Congressional leaders didn't know about it. Did they ask to be briefed on it? Were they briefed on it? Did they know that the intellegence community disavowed Bush's falsehoods about Iran? If so, what did they do about it? If they knew and did nothing, what is their level of complicity?

The only way for Congressional Democrats to clear themselves from the suspicion of complicity in Bush administration crimes is to appoint a special prosecutor, empowered to investigate not only the destruction of the torture tapes, but also other government crimes and efforts to conceal those crimes. Otherwise, their "investigations" may appear to be little more than another layer of cover-up.

Legal scholar Brendan Smith and historian Jeremy Brecher are the editors, with Jill Cutler, of "In the Name of Democracy: American War Crimes in Iraq and Beyond" (Metropolitan/Holt, 2005) (www.americanempireproject.com), and the founders of www.warcrimeswatch.org.