washingtonpost.com
Obama Open to Prosecuting Bush Officials Over Abuse
President Talks of Independent Panel on Interrogation Policy

By Michael A. Fletcher and Perry Bacon Jr.
Washington Post Staff Writers
Wednesday, April 22, 2009

President Obama yesterday declined to rule out legal consequences for Bush administration officials who authorized the harsh interrogation techniques applied to "high-value" terrorism suspects, saying the attorney general should determine whether they broke the law.

Obama also said that if Congress is intent on investigating the enhanced interrogation practices, an independent commission might offer a better means to do so than a congressional panel, which he indicated is more likely to split along partisan lines than to produce constructive results.

Obama last week released a statement that left open the possibility of legal jeopardy for those who formulated the interrogation policy, which critics say amounted to torture, but his comments marked the first time that he has explicitly raised the prospect. They also reversed his administration's apparent opposition to prosecuting those officials -- a stance taken Sunday by White House Chief of Staff Rahm Emanuel.

While Obama defended his opposition to holding CIA interrogators legally accountable, he did not extend that posture to those who created a legal foundation for the policy.

"For those who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it's appropriate for them to be prosecuted," Obama told reporters at the White House. "With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the attorney general within the parameters of various laws, and I don't want to prejudge that."

Asked whether there had been a change in policy, White House press secretary Robert Gibbs said: "I don't think so, no. I think, again, the president has stated on any number of occasions -- and as he stated today -- in saying, I think we should be looking forward and not backward."

The president's remarks came as he was under fire from critics on both the left and the right for his handling of formerly classified Office of Legal Counsel memos in which Bush administration officials authorized the interrogation techniques, which Obama banned in the early days of his presidency.

After a lengthy internal debate, Obama released the memos late last week, saying that CIA employees who operated under their guidance should not face legal consequences. That position was opposed by some lawmakers and activists, who said someone should be held accountable for what they considered torture.

Critics on the right, including former vice president Richard B. Cheney, said that Obama was jeopardizing national security by releasing the memos. Obama officials have noted that the techniques have been discussed in news reports and even publicly by former president George W. Bush.

That divide remained evident yesterday.

"I am pleased that the president made clear that he has not ruled out investigations or prosecutions of those who authorized torture, or provided the legal justification for it. Horrible abuses were committed in the name of the American people, and we cannot look the other way or just move on," said Sen. Russell Feingold (D-Wis.). "The final decision will be up to the attorney general and the president, but I urge the Justice Department to take this matter very seriously."

But some Republicans questioned Obama's move. "There is a lot of gray, there's going to be an awful lot of conflict out there," said Sen. John Thune (S.D.), adding: "They would be well served not to depart abruptly from the policies that have kept us safe the last seven years."

Concern about the intense political feelings surrounding the issue shadowed White House deliberations about how to handle the interrogation memos. The idea of a "9/11-style" commission appointed with the president's imprimatur was broadly discussed in the weeks leading up to the release of the memos, according to senior White House officials who participated in the discussions.

But the idea was quashed by Obama, who said that such a panel would provide a forum for a renewed national argument over torture and the broader question about the fight against terrorism.

"His concern was that would ratchet the whole thing up," a senior White House official said. "His whole thing is: I banned all this. This chapter is over. What we don't need now is to become a sort of feeding frenzy where we go back and re-litigate all this."

In the private discussions, Obama acknowledged that Congress might pursue such a course, aides said. But the president was clear: He did not want to put his stamp of approval on a commission.

That, coupled with Emanuel's statement Sunday on ABC's "This Week" that the president thought those who devised the interrogation policy should not be prosecuted, made Obama's comments yesterday surprising.

The Bush Justice Department wrote three of the memos in 2005 in response to a request from John A. Rizzo, senior deputy general counsel at the CIA, who wanted to ensure the agency's interrogation procedures complied with laws and international treaties. The memos were prepared by Steven G. Bradbury, who led the department's Office of Legal Counsel. A fourth was drafted with the help of Jay S. Bybee, who served in the OLC before Bush named him to the U.S. Court of Appeals for the 9th Circuit, and John C. Yoo, who became a law professor at the University of California at Berkeley. Telephone messages left for the three were not immediately returned, and a CIA spokesman said Rizzo declined to comment.

One memo said the agency had used waterboarding, a technique that simulates drowning, 183 times on detainee Khalid Sheik Mohammed, the alleged mastermind of the Sept. 11, 2001, terrorist attacks. Zayn al-Abidin Muhammed Hussein, known as Abu Zubaida, was waterboarded 83 times, the memo stated.

"The department's Office of Professional Responsibility is conducting an ongoing review into OLC memos on interrogation techniques to determine whether they were consistent with the professional standards that apply to department attorneys," said Justice Department spokesman Matthew A. Miller. "We have no comment at this time on the outcome of that review or on other possible investigations."

Staff writers Spencer S. Hsu and Michael D. Shear contributed to this report.

View all comments that have been posted about this article.

© 2009 The Washington Post Company