Pelosi Palaver

Let's assume the worst about House Speaker Nancy Pelosi and her rough re-entry into the national debate over Bush Administration torture tactics. Even though she vigorously disputes this, let's assume that she knew back in 2002 that the Central Intelligence Agency was performing water-boarding and other "enhanced" interrogation tactics upon terror suspects. Let's assume Rep. Pelosi said nothing for years even as those policies crumbled under the weight of their own illegalities and immoralities.

This makes her a hypocrite, a coward and probably a liar (not exactly a new or rare trifecta in Washington). It neutralizes her as a weapon the Democrats may choose to employ as some (but not all) Republicans eagerly seek to distance themselves from the disastrous policy. It paints her as part of the problem and not part of the solution, which is the kinder way of saying what many GOP leaders were saying about Pelosi as the week wore on. It also helps educate us all about the routine interaction between parties on sensitive intelligence matters.

But what Pelosi's complicit silence does not do is exonerate the men who drafted the torture memos and the men and women who authorized them to do so. Their degree of culpability for this mess is an order of magnitude more profound than is Pelosi's. She did not conjure up the dangerous legal theories used by John Yoo, Jay Bybee, Alberto Gonzales, and Steven Bradbury to justify the shift in policy. She didn't decide to call off FBI interrogators (whom we now know were successful) and replace them with dark CIA operatives (whom we now know were not).

She didn't allow the men who wrote or authorized those memos to remain in their positions-- or even to gain promotion—in the Bush Administration. She didn't publicly label the soldier-guards at Abu Ghraib as rogues and renegades even as she knew they were just following orders. She should have done more, she could have done more, but many others did far, far worse and have yet to be held to account. She's the tail, not the dog.

Yet whom did Sen. Lindsay Graham (R-S.C.) threaten to call before the Senate Judiciary Committee to answer questions about torture? Not Yoo, Bradbury, Bybee or Gonzales. Not Dick Cheney or David Addington. Not any of the other architects of torture-- but Pelosi, as if she were the ringleader of the whole mess. For a man whose own hands are stained by poor choices in the terror law field—he's part of the reason why the government has been unable to successfully prosecute a single Guantanamo Bay detainee—it was a startlingly cynical thing to do, even by the sad standards of our time.

In fact, the whole debate has devolved into a cynicism and partisanship that belies the importance of the topic. It's got to stop. The truth about the Bush-era torture policy is more important that the political careers of any of these people, including the President. Yet what did Barack Obama do this week instead of encouraging the Congress to get to the core of the torture story? He backtracked on an important symbolic promise to allow the release of controversial detainee photographs—passing the buck to the federal courts to make the final call—even as he was said to be pouring over legal opinions written by Supreme Court nominees. That's not nearly good enough.

Nor is it good enough for Pelosi to continue to trash the CIA as a way of dealing with her own complicity in the affair. Instead, she should declare that she'll be first in line to testify before any such torture commission and will do all in her power to make sure that one gets created. Think that's going to happen? Me neither.

Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here.