John Hockenberry, The Takeaway: Good morning, everyone. Just a few days ago it was all about looking forward, not looking back. Listen to Rahm Emanuel, Barack Obama’s Chief of Staff :

Rahm Emanuel [on tape]: ]: This is not a time for retribution, it’s a time for reflection. It is not a time to use our energy and our time in looking back in a sense of anger and retribution. We have a lot to do to protect America. And what people need to know:, this practice and technique, we don’t use anymore. We banned it.

John Hockenberry: Then, just yesterday, we learned that President Obama isn’t ruling out the formation of a committee to investigate members of the Bush administration for their harsh interrogation methods used on detained terrorist suspects. Here is the President yesterday, speaking in Washington:

President Barack Obama [on tape]: For those who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it is appropriate for them to be prosecuted. With respect to those who formulated those legal decisions, I would say that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don’t want to pre-judge that.

John Hockenberry: So, is this a flip-flop here by the Obama administration? Is that an invitation to the Department of Justice to begin prosecutions? Or, more broadly, is it an invitation from the White House for Congress to get involved here? We’re joined now by New York Congressman Jerry Nadler. He’s the Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties. Good morning, Congressman Nadler.

Rep. Jerrold Nadler: Good morning.

John Hockenberry: And you are my Congressman, I should disclose that, being from Red Hook, Brooklyn. It’s great to talk with you and let’s speak right off the top. Is this an invitation for you in Congress to begin bipartisan investigations into what the Bush administration did on interrogation tactics?

Rep. Jerrold Nadler: No, I don’t think it’s an invitation to Congress. I think first of all, it’s a recognition of the fact that these kinds of decisions, whether there should be an investigation into alleged breaking of the law, whether there should be prosecution, is properly the job of the Justice Department, which is supposed to be somewhat independent. In fact, in that kind of question, totally independent of anyone else. Remember, we carried on hearings in Congress, and a lot of criticism of the Justice Department under President Bush because of its politization, that it was responding to politics and making these kinds of judgments on a political basis and listening to the White House. The fact is that the Obama administration has pledged not to do that, and that these type of decisions should be made by the Attorney General and the people who work with him in the Justice Department. Not by Congress and not, frankly, by the President or the White House.

John Hockenberry: The White House and the President, yesterday, seemed to be separating the category of people in the CIA who he said out at Langley that he would not prosecute, who actually carried out the interrogation tactics. And the legal scholars and lawyers within the Justice Department and within the Bush administration who created the judicial rationale for those tactics, those people might be subject to prosecution. Who would be on that list, Congressman Nadler?

Rep. Jerrold Nadler: Who would be on that list would be up to the professional prosecutors that the Justice Department to take a look at, but . But, certainly, possibly possible, Judge Bybee, and John Yoo--.

John Hockenberry: David Addington?

Rep. Jerrold Nadler: Conceivably, I don’t know. I mean, you’d have to see what his responsibility was, and what he really did, and again it's up to the Justice Department to take these kinds of cases where the facts lead. And let me say one other thing, even the people who actually did torture in the CIA, if they reasonably relied on instructions or legal guidance from the Justice Department, they shouldn’t be prosecuted. But if they didn’t reasonably rely, and the difference is a distinction to be made by the Justice Department, then they should be subject to investigation and prosecution. You’re entitled to reasonably rely, but not unreasonably. That's the law.

John Hockenberry: Well, you are a Congressman, even though you are not a prosecutor, do you believe these individuals should be prosecuted? And, if so, what would the law be? What would the punishment be?

Rep. Jerrold Nadler: I believe that the Justice Department has to look at the facts and determine whether these people should be prosecuted. I don’t think they should be immune, but I’m not going to say, as a member of Congress, who should or shouldn’t be prosecuted. I believe that, obviously, torture was done, it was done very deliberately and there ought to be prosecutions. Who should be prosecuted should be decided on a non-political basis by the Justice Department.

John Hockenberry: What’s the mission of this process? Barack Obama and members of the administration were saying we need to look forward, not get into a retribution mentality, but is this about truth and reconciliation a la South Africa where we all get to feel as though there’s been accountability here? Or are you sending a specific message to a specific place in the bureaucracy: this will not be tolerated?

Rep. Jerrold Nadler: Well I think it’s both. I think both of those things are true, and I think it's a matter of justice, not retribution, and not looking forward or looking backward. I think, talking about looking forward, then you’ll never prosecute any crime, it’s always in the past. All justice has to look backward as well as forward and all history teaches us is if you don’t hold people accountable, if you don’t say that people who committed crimes are going to be tried and punished then other people are going to commit the same crimes again. That’s why simply shining a light on crimes is not sufficient. They must be prosecuted when the evidence is there. Beyond that, the United States has an obligation to investigate and, where warranted, prosecute torture. The Convention Against Torture, that was a treaty that was drafted partially by the United States, that was signed by the President and ratified by the Senate, which is the law of the land in the United States, says that when torture occurs on our territory or under our control, we must prosecute. Excuse me, it says we must investigate, and where there’s evidence of torture we must prosecute. So we have no choice unless we disobey the law.

Lynn Sherr, Takeaway Guest Host : Congressman, following up on John’s point about truth and reconciliation idea, when that happened in Rwanda and in South Africa, the idea was so the rest of the country wouldn’t have to live through so much of that again afterwards What effect do you think this will have on our country to be going through all these things again?

Rep. Jerrold Nadler: It depends. To go through what? If it’s a question of an investigation by a special counsel appointed to that purpose by the Justice Department, as I think it should be, and if that special counsel decides that some people should be prosecuted, and they are, and some are found guilty and others are acquitted, I think it will have a very good affect on the country. It will cause people in government, whether in low positions or high positions in government, in the future to think twice before breaking the law.

John Hockenberry: Well, except that it's also going to reinforce this idea of, another administration another special prosecutor, here we go again. Every time since Watergate there’s been a special prosecutor, Congress spends most of its time is looking back. How do you combat that cynicism?

Rep. Jerrold Nadler: I don’t know what the cynicism is. As I said, if crimes are committed, they must be prosecuted. And that inherently looks back.

John Hockenberry: Ok.

Jerrold Nadler: And we have a law that says we must investigate, and where the facts warrant cases of torture and we must do that, that is our duty under the law and it is our duty to civilization. And if people are discomforted by it, then they shouldn't torture in the first place.

Lynn Sherr : John asked you about some of the specifics about who might be singled out for prosecution, or who might be on the list. How high do you think it could go, and could it get to the Executive branch?

Rep. Jerrold Nadler: Well it certainly could and should get to the Executive branch. Whoever committed torture was in the Executive branch, and whoever ordered torture was in the Executive branch.

John Hockenberry: Let’s get specific then, Congressman. Vice President Cheney is on Fox News it seems every day talking about how critical he is of the Barack Obama administration. Are you anxious to get him under subpoena, under oath, to talk about those memos?

Rep. Jerrold Nadler: The answer is that it isn’t a question of whether I’m anxious to get the former Vice President--

John Hockenberry: No, that is the question.

Rep. Jerrold Nadler: No, the question is when the Justice Department looks, they ought to go where the facts lead them. If the facts lead them to Vice President Cheney, then he ought to be under oath and he ought to be prosecuted.

John Hockenberry: No, but you could call a hearing, you could subpoena him tomorrow.

Rep. Jerrold Nadler: Well, I'm not the Justice Department, I can’t subpoena him.

John Hockenberry: But Congress can subpoena the Vice President.

Rep. Jerrold Nadler: Oh, for investigation?

John Hockenberry: Sure.

Rep. Jerrold Nadler: Yeah, and maybe we should. But I think first of all, when we’re talking about this, I’d first like to see a special prosecutor, a special counsel, put in and see where the facts take it. Congress is not a substitute for investigation and prosecution of crimes.

John Hockenberry: What about Secretary Rumsfeld?

Rep. Jerrold Nadler: Again, depending on where the facts take them, quite conceivably.

John Hockenberry: And you could subpoena him tomorrow, do you have a position on Secretary Rumsfeld coming before your committee or a committee of Congress?

Rep. Jerrold Nadler: I’m not going to get into now who we should subpoena. I think that the proper process first is that a special counsel ought to be appointed in the Justice Department, and ought to investigate as any counsel would investigate and prosecute the crimes, and the people who ought to be subpoenaed and the people who ought to be prosecuted depend on where the facts take them. The role of Congress is somewhat different, our role should be to investigate with a view toward changing laws and who are the specific people is a very different question.

John Hockenberry: Congressman, thanks so much for joining us. That’s well said and we covered a lot of ground there. New York Congressman, Jerrold Nadler, Democrat, Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties. Thanks so much..

Jerrold Nadler: You're quite welcome.