In reversal, Obama opens door to prosecuting top Bush aides

McClatchy NewspapersApril 21, 2009 

WASHINGTON — Under pressure, President Barack Obama reversed statements from his own top White House aides and opened the door Tuesday to prosecuting Bush administration officials who approved harsh interrogation techniques of suspected terrorists.

Obama repeated his stand that CIA officers should be immune from criminal charges for their work interrogating suspects using techniques such as waterboarding, which critics call torture, so long as the interrogators followed guidelines written by senior Bush administration legal officials.

He said, however, that he'd leave it to Attorney General Eric Holder to decide whether Bush administration officials should face criminal charges for approving the use of such practices.

"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 in the Oval Office.

"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. I think that there are a host of very complicated issues involved there."

Obama also said that he's open to an independent or bipartisan investigation of the interrogations.

His statement that his administration might prosecute members of the Bush administration caught Washington by surprise, directly contradicting comments made two days before by White House Chief of Staff Rahm Emanuel and raising questions about why Obama abruptly changed course.

On Sunday, Emanuel told ABC News that Obama would extend his immunity from prosecution beyond CIA officers to policymakers. He said the president believed "those who devised policy . . . should not be prosecuted either . . . . It's not a time to use our energy and our time in looking back and any sense of anger and retribution."

Yet by Monday afternoon, as Obama visited the CIA to assure officers there that they wouldn't be prosecuted, he was already facing questions from inside his own administration about how far he could or should go, as well as loud complaints from friends and allies in Congress and beyond.

Inside, some administration officials raised concerns that Obama had overstepped proper legal boundaries by unilaterally declaring that the Justice Department would take no action.

At his confirmation hearing in January, Holder told the Senate he didn't think the president had the power to immunize anyone from being prosecuted for acts of torture.

"No one is above the law," Holder told the Senate Judiciary Committee. "There are obligations that we have as a result of treaties that we have signed, obligations, obviously, in the Constitution. Where Congress has passed a law, it is the obligation of the president, or the commander-in-chief, to follow those laws."

In addition, Sen. Dianne Feinstein, D-Calif., the chairman of the Senate Intelligence Committee, fired off a terse letter Monday afternoon urging Obama to withhold public comments on prosecutions until her committee can finish an investigation of the interrogations. That inquiry is expected to take another six to eight months, she said.

On Tuesday, the liberal group MoveOn.org launched a campaign to gather signatures on petitions urging Holder to appoint a special prosecutor.

"So far there's been no accountability for the architects of Bush's torture program," the group said in an e-mail to supporters.

At the same time, the liberal Web site DailyKos.com, posted a long blog item Tuesday complaining that the Obama administration wouldn't prosecute Bush administration officials "unless bludgeoned into doing it."

Republicans mocked the switch by the White House and suggested Obama caved to political pressure.

"The president's chief of staff just said on Sunday on one of the Sunday shows that we were going to look forward and not backwards. The president's apparent contradiction today is a bit surprising," said Sen. Mitch McConnell of Kentucky, the Senate Republican leader.

"It sounds like the ACLU has his ear," said Sen. Tom Coburn, R-Okla.

White House aides refused to explain the switch from Emanuel's statements to Obama's, and Press Secretary Robert Gibbs repeatedly sidestepped questions about it.

Many Democrats welcomed the possibility of criminal prosecutions.

"I am extremely pleased," said Rep. Jerrold Nadler, D-N.Y., the chairman of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties.

"Horrible abuses were committed in the name of the American people, and we cannot look the other way, or just 'move on.' 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," said Sen. Russ Feingold, D-Wis., chairman of the Senate Judiciary Subcommittee on the Constitution.

Senate Armed Services Committee Chairman Carl Levin, D-Mich., suggested that Holder name "an independent person or persons, such as a retired judge" to investigate.

The Justice Department already is reviewing the conduct of former department lawyers who helped craft the Bush administration's justification for interrogation practices.

"The Department's Office of Professional Responsibility is conducting an ongoing review into (Office of Legal Counsel) memos on interrogation techniques to determine whether they were consistent with the professional standards that apply to department attorneys," said Justice Department spokeswoman Tracy Schmaler.

"We have no comment at this time on the outcome of that review or on other possible investigations."

On Monday, former Vice President Dick Cheney argued that the interrogations were productive and necessary to stop terrorist attacks. He urged the Obama administration to declassify and release additional memos that he said documented helpful information that was drawn out in the interrogations.

(David Lightman contributed to this article.)

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McClatchy Newspapers 2009

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