THE BURNED OVER DISTRICT

Any any level, those involved with the Bush/Cheney torture program are feeling pretty safe, as long as they don't try to travel abroad. But the International Criminal Court may still have a card to play.

The International Criminal Court quietly revealed in a recent report that it was inching toward its first-ever investigation into the alleged torture of U.S. detainees in Afghanistan. That update — which came two weeks ago, just as the White House was bracing itself for the release of Senate findings on CIA torture — seemed to send a message: If the Obama administration continues to rule out prosecuting CIA torturers, the ICC could take action.

"Certain of the enhanced interrogation techniques apparently approved by U.S. senior commanders in Afghanistan … could, depending on the severity and duration of their use, amount to cruel treatment, torture or outrages upon personal dignity as defined under international jurisprudence," read a Dec. 2 report from the ICC prosecutor's office.

In the wake of the Senate report’s release — which brought fresh assurances from President Barack Obama that alleged CIA torturers would have immunity from criminal prosecution — the ICC has emerged as potentially the only hope for those demanding that the CIA be held accountable.

It had previously seemed impossible that there would ever be such an investigation into the covert program, which was specifically crafted by the George W. Bush administration to shield the agency from prosecution. But now that the Senate has entered a potential body of evidence into public record, the door has opened slightly for the ICC to pursue a case, according to Jennifer Trahan, an ICC expert with the New York University Center for Global Affairs.

Even though the United States is not a member of the ICC, Trahan said the court may have jurisdiction to prosecute alleged violations of international law that took place on CIA black sites in member countries — including Afghanistan, Poland and Romania.

But jurisdiction is merely the first hurdle to clear before the ICC considers prosecution. The court, which is designed “to help end impunity for the perpetrators of the most serious crimes of concern,” operates on a principle of complementarity, meaning it can only prosecute such crimes when a government refuses or is unable to do so. The fact that there is an ongoing Justice Department probe into CIA tactics could be problematic for the ICC, though most experts believe the court can argue that Obama’s guarantees of immunity for CIA officers would satisfy complementarity.

“Obama is trying to walk a fine line, but I think it’s an untenable position,” said Jens Ohlin, a national security law expert at the Cornell University School of Law. “If Obama believes we engaged in torture, which he’s said he does, then why aren’t we prosecuting it?”

A question whose honest answer would damn the giver.