Prelude to a Prosecution?—Maybe the big news coming out of the May 6 hearing of Jerrold Nadler’s House subcommittee is that Speaker Nancy Pelosi (D-CA) is responsible for waterboarding. That, at least, is what the committee’s ranking minority member, Trent Franks (R-AZ), would have us believe.

Franks said that Pelosi and other members of Congress were fully briefed on the CIA’s aggressive interrogation techniques in 2002. No objections were raised, he said, either by Pelosi or by four other members of Congress who looked at a “unique CIA program that was devised to wring vital information from reticent terrorist subjects in U.S. custody.”

So Speaker Pelosi is as guilty as those in the Bush administration’s chain of command who planned, authorized, and implemented the torture of U.S. detainees. It is a novel legal argument.

But it could be that something is happening here, as Nadler, the liberal New York Democrat who chairs the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, prepares to take testimony from the administration lawyers who created and implemented the policies associated with the so-called Torture Memo drafted by Office of Legal Counsel lawyer John Yoo in 2003. Yoo and Former Attorney General John Ashcroft have agreed to testify before the committee. Nadler is looking for at least one more witness.

The hearing began with unanimous consent of the majority to issue a subpoena to David Addington, Dick Cheney’s chief of staff. Addington and Cheney have worked together since the Iran-contra scandal in the 1980s, when Addington was counsel for minority members of the House Intelligence Committee, where Cheney was a ranking member.

Addington is one of the intellectual authors of the theory of the “unitary executive,” which holds that the American president is entitled to exercise broad and extraordinary powers in time of war.

Three of the four witnesses (all lawyers) testifying before the committee advanced the familiar theme that lawyers in the White House, Office of the Vice President, and the Pentagon developed a common plan to do away with the protections that the Geneva Conventions and other laws and treaties provide foreigners who are in U.S. custody.

The Democrats on the committee, and the witnesses, appeared to be building the case that there are potential criminal charges to be made against White House officials, and that contrary to what the administration claims, the Military Commissions Act of 2006 does not immunize administration officials against prosecution for war crimes.

The most compelling argument was presented by Philippe Sands, a British lawyer who has taught in the United States, practiced before international courts, and has just completed a book, The Torture Team, focused on the military chain of command and torture.

“The administration relied on a small number of political appointees,” Sands said, “lawyers with no legal background in military lawlawyers with extreme views of executive power and an abiding contempt for international rules, like the Geneva Conventions.”

Sands concluded that “as a result of these actions by the administration, war crimes were committed.” “I have no doubt,” he said, “that Common Article III of the Geneva Conventions was violated, alongside with various provisions of the 1984 convention prohibiting torture.”

Based on his on-the-record interviews with U.S. civilian and military officials, Sands described Addington as “the leader of the pack . . . the person driving the policy,” who visited Guantánamo in 2002 and “was deeply involved in the decision to get rid of the Geneva Conventions.”

It could be that the record established here will be used in international courts of law for prosecutions for the denial of due process, torture, and death of prisoners in U.S. custody.

Yet Nadler raised the possibility of criminal prosecutions in the U.S., asking law professor and National Lawyers Guild president Marjorie Cohn whether the Military Commissions Act does in fact provide members of the administration with immunity from criminal prosecution.

“No,” said Cohn, who described U.S. laws that prohibit torture or conspiracy to commit torture.

“How long,” Nadler asked, “is the statute of limitations on those laws?”

“The statute of limitations,” Cohn said, “is never.”