Reacting to an ABC News report that “Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft” “discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency,” The Atlantic’s Marc Ambinder says, “it remains one of those hidden secrets in Washington that a Democratic Justice Department is going to be very interested in figuring out whether there’s a case to be made that senior Bush Administration officials were guilty of war crimes.”

“Stories like these from ABC News,” Ambinder predicts, “will be as relevant a year from now as they are right now, perhaps even more so.”

Others aren’t so sure. Jack Balkin, a Yale law professor who blogs at Balkinization, says Ambinder’s “hidden secret” is “news to me.” He writes:

Remember that sections 8 and 6(b) of the Military Commissions Act of 2006 effectively insulated government officials from liability for many of the violations of the War Crimes Act they might have committed during the period prior to 2006. Moreover, as Marty [Lederman, a Georgetown law professor and Balkinization blogger] has pointed out, there’s a strong argument that a later Justice Department would not prosecute people who reasonably relied on legal advice from a previous Justice Department. Perhaps the Justice Department could argue that the officials’ reliance was unreasonable, but that might be difficult to show.

And putting aside the purely legal obstacles to a prosecution for war crimes, there’s also the political cost. Why would an Obama or Clinton Administration waste precious political capital early on with a politically divisive prosecution of former government officials? One can imagine the screaming of countless pundits arguing that the Democrats were trying to criminalize political disagreements about foreign policy. Such a prosecution would make politics extremely bitter and derail any chance for bipartisan cooperation on almost any significant issue. Obama or Clinton would rather get a health care bill passed, deal with the economy, or try to solve the Iraq mess, than have the first several years of their Administrations consumed by a prosecution for war crimes by officials in the Bush Administration.

“I’d love to know who’s whispering that in Ambinder’s ear,” adds Michael Goldfarb, who blogs for The Weekly Standard. “If this is a secret among Democrats, it certainly is well kept.”