Obama Open to Prosecutions in Interrogation Abuses
By SHERYL GAY STOLBERG, PETER BAKER and SCOTT SHANE
nytimes.com
( I thought the "just following orders" excuse ended with Sgt. Schultz! )
WASHINGTON — President Obama on Tuesday left open the door to creating a bipartisan commission that would investigate the Bush administration’s use of harsh interrogation techniques on terrorism suspects, and he did not rule out taking action against the lawyers who fashioned the legal guidelines for the interrogations.
Mr. Obama, who has been saying that the nation should look ahead rather than focusing on the past, said he is “not suggesting” that a commission be established.
But in response to questions from reporters in the Oval Office, he said, “if and when there needs to be a further accounting,” he hoped that Congress would examine ways to obtain one “in a bipartisan fashion,” from people who are independent and therefore can build credibility with the public.
Mr. Obama said once again that he does not favor prosecuting C.I.A. operatives who used interrogation techniques that he has since banned. But as for lawyers or others who drew up the former policies allowing such techniques, he said it would be up to his attorney general to decide what to do, adding, “I don’t want to prejudge that.”
On Monday, aides to Mr. Obama said they were not ruling out legal sanctions against the Bush lawyers who developed the legal basis for the use of the techniques.
The president’s decision last week to release secret memorandums detailing the harsh tactics employed by the C.I.A. under his predecessor provoked a furor that continued to grow as critics on various fronts assailed his position. Among other things, the memos revealed that two captured Qaeda operatives were subjected to a form of near-drowning known as waterboarding a total of 266 times.
Some Bush administration officials, including former Vice President Dick Cheney, accused the administration on Monday of endangering the country by disclosing national secrets. Mr. Cheney went on the Fox News Channel to announce that he had asked the C.I.A. to declassify reports documenting the intelligence gained from the interrogations. Gen. Michael V. Hayden, the former C.I.A. director, has also condemned the release of the memorandums and said the harsh questioning had value.
On the other side of the spectrum, human rights activists, Congressional Democrats and international officials pressed for a fuller accounting of what happened. Senator Dianne Feinstein, a California Democrat and chairwoman of the Intelligence Committee, wrote Mr. Obama asking him not to rule out prosecutions until her panel completed an investigation over the next six to eight months.
Mr. Obama tried to calm the situation on Monday with his first visit to C.I.A. headquarters since taking office. Concerned about alienating the agency, Mr. Obama went out of his way to lavish praise on intelligence officers, using words like “indispensable,” “courage” and “remarkable” and promising his “support and appreciation.”
“Don’t be discouraged by what’s happened in the last few weeks,” he told employees. “Don’t be discouraged that we have to acknowledge potentially we’ve made some mistakes. That’s how we learn. But the fact that we are willing to acknowledge them and then move forward, that is precisely why I am proud to be president of the United States and that’s why you should be proud to be members of the C.I.A.”
Aides said Mr. Obama struggled for four weeks about whether to release the memos in response to a lawsuit filed under the Freedom of Information Act, consulting with advisers, experts and intelligence professionals. It was on his mind so much, they said, that he talked about it with aides late at night in his hotel room during stops on his recent European trip.
In meetings, they said, he served as “the interrogator,” as one put it, challenging people to defend their views. Advisers diverged, with some like Attorney General Eric H. Holder Jr. favoring the release of more information and others like Leon E. Panetta, the new C.I.A. director, urging that more be withheld. Aides said Mr. Obama worried about damaging morale at the C.I.A. and his own relationship with the agency.
In the end, aides said, Mr. Obama opted to disclose the memos because his lawyers worried that they had a weak case for withholding them and because much of the information had already been made public in The New York Review of Books, in a memoir by George J. Tenet, the former C.I.A. director, and even in a 2006 speech by President George W. Bush.
The decision to promise no prosecution of those who followed the legal advice of the Bush administration lawyers was easier, aides said, because it would be hard to charge someone for doing something the administration had determined was legal. The lawyers, however, are another story.
On Sunday, Rahm Emanuel, the White House chief of staff, said on the ABC News program “This Week” that “those who devised policy” also “should not be prosecuted.” But administration officials said Monday that Mr. Emanuel had meant the officials who ordered the policies carried out, not the lawyers who provided the legal rationale.
Three Bush administration lawyers who signed memos, John C. Yoo, Jay S. Bybee and Steven G. Bradbury, are the subjects of a coming report by the Justice Department’s ethics office that officials say is sharply critical of their work. The ethics office has the power to recommend disbarment or other professional penalties or, less likely, to refer cases for criminal prosecution.
The administration has also not ruled out prosecuting anyone who exceeded the legal guidelines, and officials have discussed appointing a special prosecutor. One option might be giving the job to John H. Durham, a federal prosecutor who has spent 15 months investigating the C.I.A.’s destruction of videotapes of harsh interrogations.
As the debate escalated, Mr. Cheney weighed in, saying that if the country is to judge the methods used in the interrogations, it should have information about what was obtained from the tough tactics.
“I find it a little bit disturbing” that “they didn’t put out the memos that showed the success of the effort,” Mr. Cheney said on Fox News. “There are reports that show specifically what we gained as a result of this activity.”
Other investigations promise to keep the issue alive. The Senate Armed Services Committee plans to release its own report after two years of looking at the military’s use of harsh interrogation methods. And the Democratic chairmen of the Senate and House Judiciary Committees are pushing for a commission to look into the matter. At the same time, the administration faces pressure from abroad. Manfred Nowak, the United Nations’ chief official on torture, told an Austrian newspaper that as a party to the international Convention against Torture, the United States was required to investigate credible accusations of torture.
Others pushing for more investigation included Philip D. Zelikow, the former State Department counselor in the Bush administration. On his blog for Foreign Policy magazine and in an interview, Mr. Zelikow said it was not up to a president to rule out an inquiry into possible criminal activity. “If a Republican president tried to do this, people would be apoplectic,” he said.
Frederick A. O. Schwarz Jr., who was chief counsel to the Church Committee, the Senate panel that investigated C.I.A. abuses in the 1970s, said Mr. Obama was “courageous” to rule out prosecutions for those who followed legal advice. But he said “it’s absolutely necessary” to investigate further, “not for the purpose of setting blame but to understand how it happened.”
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