By Carrie Johnson and Joby Warrick
Washington Post Staff Writers
Monday, July 13, 2009
After trying for months to shake off the legacy of their predecessors and focus on their own priorities, Obama administration officials have begun to concede that they cannot leave the fight against terrorism unexhumed and are reluctantly moving to examine some of the most controversial and clandestine episodes.
The acknowledgment came amid fresh disclosures about CIA activity that had been hidden from Congress for seven years, the secrecy surrounding a little-understood electronic surveillance program that operated without court approval, and word that Attorney General Eric H. Holder Jr. favors naming a criminal prosecutor to examine whether U.S. interrogators tortured terrorism suspects.
The way ahead for an administration grappling with severe economic trouble and health-care reform is all but certain to prove controversial, and perhaps difficult to control, for leaders who have foundered in their approach to national security policy.
Fears expressed by President Obama and his chief of staff, Rahm Emanuel, that looking back at the Bush administration would force the country into divisive arguments won new footing yesterday as conservative lawmakers challenged even small steps that Obama and his attorney general appear on the verge of taking.
"What's going to be the positive result from airing out and ventilating details of what we already knew took place and should never have? And we are committed to making sure it never happens again," Sen. John McCain (R-Ariz.) said on NBC's "Meet the Press." "I do not excuse it. I am just saying: What's the effect on America's image in the world?
Sen. John Cornyn (R-Tex.) struck a similar chord. "This is a terrible trend. . . . This is high-risk stuff, because if we chill the ability or the willingness of our intelligence operatives and others to get information that's necessary to protect America, there could be disastrous consequences."
But civil liberties groups and House Democrats cheered the news as a culmination of months-long efforts to press Obama and his aides to pursue the issue of detainee mistreatment and other possible legal violations.
"It is time to finally confront the gross human rights abuses of the last administration," said Jameel Jaffer, director of the American Civil Liberties Union's National Security Project. "Initiating a criminal investigation is a crucial step towards restoring the moral authority of the United States abroad and restoring the rule of law at home."
A senior Justice Department official close to Holder stressed anew yesterday that the attorney general had reluctantly come to lean toward naming a criminal prosecutor from inside the department, after months of reading classified material including a still-secret 2004 CIA inspector general report.
The announcement to appoint a prosecutor who may look into whether CIA interrogators operated outside the boundaries set by George W. Bush's Justice Department could come in the next few weeks, perhaps in concert with the release of an ethics report involving Bush lawyers, said the official, who spoke on the condition of anonymity because the process is continuing.
Federal law enforcement officials are obliged to investigate possible violations of anti-torture statutes and other criminal laws. That makes it difficult for the Obama administration to ignore material gleaned from watchdog reports, the International Committee of the Red Cross and other sources, former government lawyers said.
"Where there are egregious violations, you can't just brush them under the rug," Sen. Charles E. Schumer (D-N.Y.) said on "Meet the Press." "And so I think that the attorney general, to look for some egregious violations, which is what he is doing now, is the right thing to do."
Richard J. Durbin (Ill.), the second-highest-ranking Democrat in the Senate, told ABC anchor George Stephanopoulos yesterday that "those who broke the law need to be held accountable."
But by confining any criminal investigation to the narrow issue of CIA interrogators who operated outside legal boundaries, and by ruling out the possibility of criminal charges for lawyers and policymakers, the Obama administration has given itself an argument for forestalling a congressional probe likely to be far messier and more public than a traditional law enforcement inquiry.
Legal experts and former intelligence officials also raised questions about the likelihood of criminal indictments against interrogators. They point out that evidence may have been tainted on the battlefields of Iraq and Afghanistan, and that only one U.S. contractor has been convicted of a crime related to detainee mistreatment.
On another front, key Democrats suggested that the Bush White House may have violated laws by urging the CIA to keep secrets from congressional overseers.
Dianne Feinstein (Calif.), chairman of the Senate intelligence committee, confirmed that the CIA had withheld information from Congress about a covert counterterrorism program at the request of then-Vice President Cheney.
"This is a big problem, because the law is very clear," Feinstein said on "Fox News Sunday."
CIA Director Leon E. Panetta informed Congress about the covert program -- the nature of which has never been publicly revealed -- in two classified briefings last month. He said he had only recently learned of the nearly eight-year-old program, and he said that past CIA managers had kept details from Congress at Cheney's request.
"If the intelligence committees had been briefed, they could have watched the program," Feinstein said. " . . . That was not the case, because we were kept in the dark." She said the withholding of covert information is "something that should never, ever happen again."
The CIA's failure to inform Congress was brought to light last week in letters by several congressional Democrats, including House intelligence committee Chairman Sylvestre Reyes (Tex.). The New York Times, citing unidentified officials, first reported that Panetta had told lawmakers about Cheney's role in keeping the program secret.
The revelations have heightened pressure on Obama to begin investigating an array of Bush administration practices. Although Obama halted many practices, his senior advisers have been wary of embracing a congressionally chartered "truth and reconciliation" commission to get to the bottom of the events.
Congressional Republicans decried the idea of any inquiry. "Democrats have twisted the facts to fit this piece of fiction and shown their disregard for our most sensitive national security secrets," said Kit Bond (Mo.), ranking Republican on the Senate intelligence panel.
Even Feinstein urged caution, saying that an ongoing Senate intelligence inquiry should be finished before a decision is made on the need for further investigation.
Republicans and some former high-ranking intelligence officials question whether the CIA was ever obliged to brief Congress on the program. Former agency officials have described it as a technically oriented intelligence-collection effort unrelated to terrorism suspects or the terrorist-surveillance program that came to light in 2005.
The program began shortly after the Sept. 11, 2001, attacks and was authorized by Bush as part of a highly classified directive on Sept. 26 of that year. The directive granted the CIA blanket authority to attempt to kill or capture al-Qaeda operatives.
Former intelligence officials said the program was aimed at enhancing the agency's ability to carry out the goals of the directive. The Wall Street Journal reported that the initiative was intended to help the CIA capture or kill al-Qaeda operatives.
A White House spokesman had no comment.