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Inquiry Into Torture Memos Appears Inevitable

President Obama visited the CIA's headquarters in Langley, Va., on Monday, soon after his decision to release Bush-era memos that offered a legal justification for the use of harsh interrogation tactics.
Ron Sachs-Pool
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President Obama visited the CIA's headquarters in Langley, Va., on Monday, soon after his decision to release Bush-era memos that offered a legal justification for the use of harsh interrogation tactics.

President Obama has long insisted that he wants to look forward — not back — at the alleged misdeeds of Bush administration officials who signed off on harsh interrogation tactics after the terrorist attacks of Sept. 11.

But that path to the past became increasingly inevitable in recent days.

First came the release of controversial Bush-era torture memos that detailed the administration's legal justifications for the use of extreme tactics.


Then came reports — the results of a Senate Armed Services Committee investigation — revealing that the controversial interrogation method of controlled drowning, known as waterboarding, was proposed by the CIA in 2002, shortly after the capture of a suspected terrorist, and three months before Bush lawyers secretly approved the technique. Those aggressive techniques, the investigation found, were exported to military detainee facilities, including Iraq's Abu Ghraib prison.

And so, though Obama's chief of staff, Rahm Emanuel, appeared to rule out an investigation of the memo's authors just days ago, Obama now says it will be up to Attorney General Eric Holder to determine whether any official broke the law.

'That's Not How History Works'

"The Obama administration had a choice: whether it would cover up Bush administration crimes, thereby becoming complicit, or to hold true to the president's pledges of transparency and accountability," says Amrit Singh, a lawyer with the American Civil Liberties Union.

"He has certainly delivered on transparency by releasing the memos," she said. "But transparency itself wasn't sufficient."


A chorus of voices on the left has long urged Obama to protect his self-touted accountability brand by pursuing an investigation on behalf of a country still debating the merits of what was done, in its name, in the pursuit of national security. on Wednesday sent a Web ad to its millions of members, urging them to call on Holder to appoint an independent special prosecutor to investigate the torture memo authors — including Jay Bybee, who is now a federal judge, and John Yoo, now a tenured law professor at the University of California, Berkeley.

An Intelligence Committee memo declassified by the Obama administration contains a committee-generated timeline that indicates that CIA interrogators asked to use waterboarding three and a half months before then-Bush lawyer Bybee wrote a memo signing off on the "enhanced interrogation technique." The timing, officials say, strongly suggests that the memo was shaped by the CIA's request.

Senate Armed Services Committee Chairman Carl Levin (D-MI) told NPR on Wednesday that he wants an independent panel to look into whether top officials who authorized the use of harsh interrogation tactics should be punished.

Meanwhile, historians suggest that presidents, no matter how full their plates — and Obama's is plenty full — simply can't ignore the alleged misdeeds of the previous administration, particularly when those deeds have divided a nation.

"Presidents have to come to grips with the sins and crimes of the previous administration," says author Barry Werth, whose book, 31 Days: The Crisis That Gave Us the Government We Have Today, documented President Ford's pardon of his predecessor, Richard Nixon, in the wake of the Watergate scandal.

"Ford just wanted to turn the page, and [Obama adviser] David Axelrod said this administration wanted the same." Werth says. "But that's not how history works."

Did Cheney Add Fuel To The Fire?

Conservatives themselves may have pushed Obama to open the door to an investigation of the torture memo authors, argues lawyer Charles Swift.

As a military attorney, Swift represented Guantanamo Bay, Cuba, detainee Salim Ahmed Hamdan of Yemen. In 2006, the U.S. Supreme Court ruled in favor of Hamdan's challenge of the legality of military commissions used to try detainees.

"This was inevitable, because conservative members of the past administration, most prominently former Vice President Dick Cheney, continue to insist publicly and on television that torture works," says Swift, now in private practice in Seattle.

"They want the fight, and that puts incredible pressure on the Obama administration," says Swift, who puts himself in the "torture doesn't work" camp.

Revelations that terrorism suspects were subjected to waterboarding more than 100 times, he says, serve as the most powerful evidence that such tactics are ineffective.

Those who support the tactics, including Cheney, say they have produced valuable information that has protected the country. But the veracity of that claim has been challenged — and that has raised questions about whether such information could be gained through less aggressive methods.

In highly publicized television appearances, Cheney has claimed that by barring the use of harsh interrogation techniques, the new president has made the country less safe. That represents a sharp break with tradition, Swift says.

"It's extraordinary," Swift says — and designed to set up the president for blame, no matter when or how terrorists next attack. "It's an unfair debate."

Partisans Agree: Obama Should Steer Clear

The ACLU, which secured the release of the torture memos through a Freedom of Information request, has called for a congressional select committee and an independent prosecutor to investigate allegations of Bush-era abuse of prisoners.

"Anything short of that would be insufficient," says Singh.

Others caution against prosecution. That includes conservatives, who argue that the torture techniques work and that an investigation and prosecution would compromise national safety.

Republican Sens. John McCain of Arizona and Lindsey Graham of South Carolina, along with independent Sen. Joe Lieberman of Connecticut, on Wednesday sent Obama a letter urging him not to pursue the prosecution of Bush legal officials who provided opinions on torture.

Such prosecutions, they wrote, would "have serious negative effects on the candor with which officials in any administration provide their best advice." Sen. Arlen Specter of Pennsylvania, the ranking Republican on the Senate Judiciary Committee, also weighed in against prosecution.

Most want to avoid what would certainly be bitterly partisan congressional hearings. But on one point partisans agree: The president needs to steer clear now.

"If he starts trying to manage this, it's a mistake," says Swift. "Holder has to make it his job."

The attorney general has said he will "follow the law wherever it takes us."

Just What Kind Of Investigation?

Swift and others have suggested that Holder ask a high-ranking nonpartisan official — someone like federal prosecutor Patrick Fitzgerald in Chicago — to look at the evidence against the memo writers and determine whether there are cases to prosecute. Obama has said his administration won't pursue action against CIA agents who used techniques approved in the torture memos.

Swift, who doesn't support prosecution, says he sees as the best alternative an inquiry by an independent Truth Commission, much like the one proposed by Democratic Sen. Patrick Leahy of Vermont, chairman of the Senate Judiciary Committee.

Under that scenario, the Justice Department could grant witnesses immunity in exchange for their testimony. This approach, Swift argues, would allow the fullest story of intelligence practices during the Bush years to emerge.

The debate over what constituted torture and whether it works "has to be finished," he says.

Swift says a Truth Commission inquiry could provide a full review of abusive interrogation techniques — serving as a deterrent on the future use of torture. It could also offer a needed examination of how to improve what is now a very demoralized CIA, he says.

Says Werth about the debate: "This is a very big issue that goes to the heart of the kind of country we are and how we conduct ourselves in the world."

Too Late To Avoid An Examination?

White House spokesman Robert Gibbs on Wednesday said Obama believes that the release of the memos should provide a moment to "reflect, but not a moment for retribution."

But events appear to have moved past the point where the nation can sidestep a true, tough examination of torture and its legal proponents.

By saying he preferred to look forward, Obama extended an olive branch to Bush-era officials, Swift says.

"They took the branch, stripped it and started switching him with it," he says.

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