As Hersch's article and other articles make clear, most of the evidence against Rumsfeld is in the public record. Hersch writes:
In subsequent testimony, General Myers, the J.C.S. chairman, acknowledged, without mentioning the e-mails, that in January [2004, when the abuses first were reported] information about the photographs had been given “to me and the Secretary up through the chain of command. . . . And the general nature of the photos, about nudity, some mock sexual acts and other abuse, was described.”
(Uncharacteristically, Hersch omits the details of this testimony and I have not been able to find the date or committee to which it was given. The dates and committees for other statements by officials are well-documented in the article.)
In the next paragraph Hersch writes: "Nevertheless, Rumsfeld, in his appearances before the Senate and the House Armed Services Committees on May 7th , claimed to have had no idea of the extensive abuse. "It breaks our hearts that in fact someone didn't say, 'Wait, look, this is terrible. We need to do something,'' Rumsfeld told the congressmen. 'I wish we had known more, sooner, and been able to tell you more sooner, but we didn't."
Rumsfeld told the legislators that, when stories about the Taguba report appeared, 'it was not yet in the Pentagon, to my knowledge.'"
So leaving aside all the inferences from Rumsfeld's control-freak personality, knowledge of how the chain-of-command works, and the statements about the specific instructions for interrogation transported via General Miller from Guantanamo, if Hersch is right about the public record, this means that:
1) The Chair of the Joint Chiefs of Staff told Congress that information about the "abuse" at Abu Grahib had been given "to me and the Secretary..." in January, 2004, or three months before Rumsfeld told Congress he first knew of it.
2) In a newspaper article published on July 15, 2005, Stephen Hedges writes in the Baltimore Sun that General George Miller, the guy who brought Gitmo to Abu Ghraib, said he briefed Rumsfeld aides Paul Wolfowitz and Stephen Cambone in Fall, 2004, after returning from Iraq: ""Following our return in the fall, I gave an outbrief to both Dr. Wolfowitz and Secretary Cambone." Hedges says that Congress never asked Wolfowitz about what he knew and when he knew it.
Wolfowitz and Rumsfeld were in frequent, daily contact. Documentation of these conversations in some form must exist and now that the Democrats are running Congress this might be a good time to subpoena them. Likewise, the old guard is crumbling and it might be easier now to find remorseful ex-officials happy to relieve their consciences.
The Congressional testimony and documents can be obtained immediately but the trial needs to wait until Bush leaves office, which still leaves Rumsfeld's crime within the statute of limitations. One sad lesson the Republicans have taught is that it's not enough to convict government officials for them to go to jail; the Bush criminal gang needs to be thrown out so that they might be actually punished. The statute of limitations on lying to Congress is five years. And the penalty is five years, too. If there's one brave U.S. Attorney General still standing, perhaps she will take this to heart, but she needs to wait until late January, 2008 or the only accomplishment will be another Get-Out-of-Jail-Free card issued by what Taguba aptly calls the Mafia. Images from People's Daily article on Rumsfeld's Congressional testimony for May 7, 2004.