Obama's Growing Dilemma on Torture Prosecution

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Saul Loeb / AFP / Getty

President Obama speaks to CIA employees at the agency's headquarters in Langley, Va.

Less than a day after President Barack Obama told CIA employees in person that he didn't support prosecuting them for the harsh interrogations of terrorism suspects, he left open the possibility that those who drafted the legal opinions justifying such questionable techniques could end up facing charges. The surprising statement marked just the latest step in Obama's evolving view of the Bush Administration's handling of terrorism cases, and it underscored the fine line he is navigating in his stated commitments to uphold the rule of law and at the same time move beyond the divisive Bush years.

While he criticized the interrogation policies during last year's presidential campaign, Obama has made clear since his election that he prefers "looking forward and not backwards,' a view he repeated on Tuesday. But in addition to giving a green light to Attorney General Eric Holder to investigate the lawyers involved, Obama said for the first time that he could support a bipartisan commission that would probe how government employees ended up carrying out what some view as government-approved torture. (Read "Waterboarding: A Mental and Physical Trauma.")

In retrospect, the apparent change of heart was almost a self-fulfilling prophecy: after all, it was Obama himself who last week ordered the release of four Bush Administration legal memos justifying interrogations that included waterboarding, sleep deprivation and other harsh methods. The documents — with their excruciating details largely intact, despite CIA Director Leon Panetta's call that more be blacked out — outraged partisans on both sides.

Many Democrats and human-rights activists see the memos as damning evidence that the U.S. violated international law and say officials should be held accountable. Many Republicans and national-security experts are dismayed by the decision to air the dirty laundry, claiming the revelations weaken the country's intelligence-gathering capabilities and give a misleading picture of the efficacy of such interrogation tactics. (Read how waterboarding got out of control.)

The Obama Administration has already ruled out the prosecution of those who actually carried out the harsh interrogations, so long as they complied with the government-approved guidelines. And Obama treaded carefully on Tuesday, stressing to reporters at the end of his Tuesday meeting with Jordan's King Abdullah that he did "not want to prejudge" the outcome of the Justice Department's inquiry into the policy's legal underpinnings and that he would not want any inquiry to turn into a partisan witch hunt. "I do worry about this getting so politicized that we cannot function effectively, and it hampers our ability to carry out critical national-security operations," he said. But at that point it was too late. By not entirely ruling out the authors' prosecution — as his chief of staff, Rahm Emanuel, had appeared to do over the weekend — the President had effectively unleashed the hounds.

And they were quick to pounce on beleaguered White House press secretary Robert Gibbs. He spent a good portion of Tuesday's contentious press briefing trying to make the case that Obama's comments did not in fact signal any change, despite what other Administration officials, including himself and Emanuel, had said in the past.

Advocates on both sides of the heated issue, not surprisingly, didn't see it that way. "Torture is a crime, and we are hopeful that President Obama's comments signal a new acknowledgment of the need for criminal investigations of those who authorized, legally justified and carried out these unlawful acts," said Anthony Romero, executive director of the American Civil Liberties Union. "Accountability is not retribution; it is justice." Republicans professed to be perplexed. "We're sort of interested to know what is the policy or the position of the Administration," said Senate GOP leader Mitch McConnell of Kentucky, "because now it seems to be somewhat confusing."

Obama's statements — combined with a critical report from the Senate Armed Services Committee into the origins of the interrogation policies that was released on Tuesday night — are sure to ratchet up pressure on his Administration to clear the air. So will a report expected soon from the Justice Department's ethics office, which is looking into the actions of the memos' authors, Steven Bradbury, Jay Bybee and John Yoo. Federal officials say it will find their legal logic unpersuasive, though what measures it may recommend, be it disbarment or criminal charges, are uncertain.

The presidential nod on Tuesday toward the creation of what some are calling a "truth commission" to ferret out the origin of the harsh interrogations is likely to get renewed traction. Democrats Senator Patrick Leahy of Vermont and Representative John Conyers of Michigan, who head the two congressional judiciary committees, have argued for such a panel, modeled on the widely respected one that studied 9/11. Having sparked the current conflagration by releasing the memos, Obama can only hope that creating such a commission could tamp it down — and keep this political firestorm from sucking up the valuable political oxygen he needs for his many other initiatives.

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