WASHINGTON - 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."