By Dan Balz and Perry Bacon Jr.
Washington Post Staff Writers
Thursday, April 23, 2009
The legacy of George W. Bush continued to dog President Obama and his administration yesterday, as Congress divided over creating a panel to investigate the harsh interrogation techniques employed under Bush's authorization and the White House tried to contain the controversy over the president's decision to release Justice Department memos justifying and outlining those procedures.
Obama had hoped to put the whole matter behind him, first by banning those interrogation methods early in his presidency and then by releasing the memos last week with the provison that no CIA official who carried out interrogations should be prosecuted.
Instead, the latest decision has stirred controversy on the right and the left. Obama has drawn sharp criticism from former vice president Richard B. Cheney, former CIA directors and Republican elected officials for releasing the memos. Those critics see softness in the commander in chief. He faces equally strong reaction from the left, where there is a desire to punish Bush administration officials for their actions and to conduct a more thorough investigation of what happened.
The controversy moved to Capitol Hill yesterday as lawmakers debated the wisdom of beginning a fresh investigation of the Bush-era practices. Several top Democrats, including Senate Majority Leader Harry M. Reid (Nev.) and Sen. Richard J. Durbin (Ill.), withheld judgment, noting that the Senate Select Committee on Intelligence has begun an inquiry.
House Speaker Nancy Pelosi (D-Calif.), however, endorsed the idea and said witnesses should not be immune from prosecution.
Obama apparently thought he could avoid what is now playing out. In the weeks when he was weighing the release of the memos, a vigorous debate took place within his administration. There was, according to a senior official, considerable support among Obama's advisers for the creation of a 9/11 Commission-style investigation as an alternative to releasing the documents. But the president quashed the concept.
"His concern was that would ratchet the whole thing up," the 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.' "
Obama knew he could not stop Congress from doing whatever lawmakers decided to do, but he was reluctant to give a presidential imprimatur to a national commission that would keep the controversy alive for months or years. He had his own agenda and wanted to move on. Putting out the memos seemed to be the cleanest way to accomplish his twin goals of making a break with the previous administration and avoiding a lengthy and partisan debate over his policy vs. Bush's.
That was where things stood when the administration released the information last week. In the subsequent four days, officials did damage control. Obama went to CIA headquarters Monday to defend his decision and to try to boost morale at the agency. Meanwhile, there was a backlash against the administration's seeming posture that no one should be prosecuted for what happened under Bush.
White House Chief of Staff Rahm Emanuel contributed to the perception that this was the administration's position. Speaking on ABC's "This Week" on Sunday, he said that neither the CIA officials who carried out the harsh interrogations nor the Justice Department officials who authorized them should be prosecuted. "It's not a time to use our energy and our time in looking back [in] any sense of anger and retribution," he said.
That was contrary to what the administration signaled when the memos were released. At that time, it seemed clear that the authors of the legal justification could face legal jeopardy, depending on a further review by Attorney General Eric H. Holder Jr.
When Obama was pressed on this and other questions Tuesday, he said he was not prepared to rule out prosecutions of some of those responsible for setting the policy. What seemed to be off the table Monday was suddenly back on it.
White House officials said the president's words were not a change in policy, but the headlines and the television commentary said otherwise. Now, Obama finds himself in the middle of a storm that may or may not pass quickly.
Bush administration veterans, led by Cheney, are poised to renew a high-volume debate over the efficacy of the interrogation methods and, more broadly, the approach to terrorism that Obama's predecessor took after Sept. 11, 2001. Cheney called this week for the release of more memos that he said would demonstrate how effective the tactics were. And in an interview with Fox News's Sean Hannity, he made it clear that he is ready to wage a battle over who is right.
"The threat is there. It's very real, and it's continuing," Cheney said. "And what the Obama people are doing, in effect, is saying, 'Well, we don't need those tough policies that we had.' "
Secretary of State Hillary Rodham Clinton was pressed in testimony before the House Foreign Affairs Committee yesterday to respond to Cheney's contention that the administration is suppressing evidence that the techniques worked and that Bush officials tried to correct problems as they arose. "It won't surprise you that I don't consider him a particularly reliable source of information," Clinton responded.
Obama has triggered a debate over what happens next. The American Civil Liberties Union has called for a special prosecutor. White House press secretary Robert Gibbs appeared to reject that course, saying Justice Department lawyers are looking into the question of legal action against those responsible for authorizing the interrogation methods and are capable of reaching a conclusion.
Gibbs also emphasized that it will be up to the Justice Department, not the White House, to decide how to proceed, and he invoked an analogy.
"If you spray-paint the back of this plane, if you tear up one of the seats, even though it's Air Force One, the president doesn't make a determination as to who broke the law," Gibbs said. "That's a legal official."
The possibility of a commission remained unclear. The Senate's leading advocate for the idea, Sen. Patrick J. Leahy (D-Vt.), said Tuesday that he welcomed Obama's comments opening the way for an inquiry but was still looking to gather support.
Sen. Russell Feingold (D-Wis.), one of the chief backers of the commission proposal, sent Obama a letter yesterday pressing him to consider prosecuting not only the lawyers who provided legal justification but also some of the people who carried out the procedures.
In a joint statement, Sens. John McCain (R-Ariz.), Joseph I. Lieberman (I-Conn.) and Lindsey O. Graham (R-S.C.) said prosecuting Bush administration officials for their legal opinions would have a "deeply chilling effect" on any administration receiving legal advice. And they said a commission would "focus on the mistakes of the past" instead of "looking forward to solutions."
White House officials have expressed confidence that a congressionally backed investigation will not come to pass. But they have been drawn into a debate they did not foresee. The president has a full plate, domestically and internationally. He had hoped that, in winning the election and moving quickly to change his predecessor's policies, he could close the books on Bush's presidency.
Instead, he has found in his first months how difficult that is. Hopes for an immediate change in tone have withered. Republican opposition to his economic policies remains nearly unanimous. With this latest controversy, he is learning that neither the opponents nor the defenders of Bush's presidency are ready to move on.
Staff writers Glenn Kessler and Michael D. Shear contributed to this report.