When President Obama decided a month ago to release four Bush-era memos outlining legal arguments to justify the use of harsh interrogation tactics on terrorism suspects, he said that "nothing will be gained by spending our time and energy laying blame for the past." But the past has caught up with him — and the country — in a big way.
As the partisan rhetoric and the clamor for more disclosure and inquiry intensify, the end of the torture debate is nowhere in sight.
"It seems to be taking on a life of its own — and in so many directions," says Vicki Divoll, former counsel for the Senate Select Committee on Intelligence. "I've never seen anything like it. It's the story that won't die."
Congressional intelligence committees are investigating the CIA's role in the interrogation scandal and what was done in the name of national security.
The Department of Justice is deciding whether evidence suggests that authors of the torture memos — Bush lawyers who worked in the department's Office of Legal Counsel — should be recommended for disbarment.
And Democratic Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, is agitating for a "truth commission" — to the consternation of some of his own party members. Such a panel would have subpoena power and be able to grant immunity to those testifying about how interrogation policies came to be.
'There Needs To Be A Truce'
The notion that any of those three major, imperfect paths to some resolution may quell the expanding debate seems overly hopeful to many who are urging the president to step up to the plate.
"To do anything in a bipartisan way is getting harder every day," says James Jay Carafano of the conservative Heritage Foundation. "We need to stop the insanity — there needs to be a truce."
"If there's evidence that somebody committed a crime, prosecute them," Carafano says, dismissing the suggestion by some Democrats that a special prosecutor be named.
Andrew McBride, a Washington lawyer and former lawyer at Justice, likens the release of the torture memos to "launching a big, hard rubber ball in the middle of the room."
"It could hit anyone," he says, "even people you don't expect — like [Nancy] Pelosi." Indeed, the question of what the Democratic House speaker was told about the use of waterboarding in a classified briefing in 2002 has added new fuel to the partisan debate — with former Republican House Speaker Newt Gingrich calling on Pelosi to resign (sidebar).
A Presidential Commission?
McBride is among those who argue that to remove the issue from the political maelstrom on Capitol Hill, the president needs to get involved.
"The intelligence committees have an obligation to look at the CIA, but they have no jurisdiction over the Department of Justice," says McBride. "And fanning the fire on the Hill is bad."
McBride thinks Obama should establish an advisory committee to examine the relationship between the Justice Department's Office of Legal Counsel, which produced the torture memos, the White House and the CIA.
He opposes prosecuting Bush lawyers for rendering legal opinions — unless there is proof that an attorney violated bar rules by conspiring with the CIA to misstate facts of harsh interrogation techniques.
"If there's a structural flaw there that caused the breakdowns — and there were plenty of them," he says, a presidential-appointed committee could examine how the Office of Legal Counsel can become more independent of the White House and the agencies it serves, including the CIA.
Karen Greenberg, executive director of New York University's Center on Law and Security, agrees. She says she finds the notion of a "truth commission" uncomfortably evocative of apartheid and the failed government of South Africa.
"Everything's confused right now — the amount of information is mind-boggling," she said. "It has to be a separate, outside inquiry by authoritative people who can put it together."
Congress In The Dark
Divoll was former Florida Sen. Bob Graham's lawyer when he chaired the Senate Select Intelligence Committee. In 2002, Graham also attended classified briefings, though not with Pelosi.
She sees the political kerfuffle over Pelosi's comments as masking a larger issue: the limited information Congress was provided about the Bush administration's program of detainee interrogation.
Limiting briefings to the top four members of Congress' Senate and House intelligence committees "was completely improper," says Divoll, who is also a former deputy counsel to the CIA's Counterterrorist Center, where she worked from 1995-2000. "In fact, it was unlawful under the National Security Act."
Divoll, who teaches government and the Constitution at the U.S. Naval Academy, says that the act allows the White House in an emergency — typically related to covert action — to "notify" the intelligence committee leaders.
It was unlawful for the Bush White House, she argues, to limit notification of the ongoing interrogation program to the four leaders. But it had become common practice, even before Bush was elected, to avoid political push-back on controversial programs.
"I'm concerned about this broader picture: the ability of administrations to limit access Congress has to these programs," Divoll says. "Congress was between a rock and a hard place, passing budgets that included funding for programs — including the interrogation program — they didn't know about."
Divoll is advocating that the National Security Act be amended to clarify when the limited notification process can be used, and for how long.
Controlling The Narrative
The Heritage Foundation's Carafano argues, convincingly, that "we're not going to stop the debate by only debating."
And the continued partisan war, he predicts, will result in "mutually assured destruction."
But it remains all about who controls the torture narrative, says NYU's Greenberg. She says the nation needs to forgive itself for not paying attention during a time when it was at its most vulnerable. But, she says, what was done in the name of national security is "not something we can live in denial of."
"We need to understand what happened, and understand the human inability to grasp what was happening," she says.
Meanwhile, the wrestling over who gets to tell the story of torture and national security continues: On Thursday, President Obama will deliver a major national security speech. That same day, Dick Cheney will be giving his own address on the topic at the American Enterprise Institute.
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