BY JONATHAN TURLEY
Obama Indicates That He Will Not Investigate Bush Crimes
Published 1, January 12, 2009
President-elect Barack Obama appears to be signaling that he is not inclined to investigate crimes committed by the Bush Administration. In an interview with ABC News program “This Week With George Stephanopoulos”, he picked up on the recent Democratic spin that we should all “look to the future and not the past” even if the past happens to contain war crimes committed by his predecessor. I just finished an interview on Talk of the Nation on which I debated the issue with Harvard Professor and former solicitor general Charles Fried. I also discussed the issue on MSNBC Countdown.
Many civil libertarians are concerned that this will be another flip-flop from Obama after he surprised many by voting in favor of telecom immunity. During the campaign, he made it clear that he believed that waterboarding is torture, an inescapable position. Yet, the deductive reasoning is inescapable. If waterboarding is torture and torture is a war crime, then the Bush Administration committed war crimes. Yet, it appears that once again practicalities have proven the enemy of principle. With many insisting that such an investigation would be a distraction. It is the latest spin from Democrats. Democrats first insisted that they could do nothing about criminal programs like the torture and surveillance programs because they did not control Congress. Then, when they controlled Congress, they insisted that there was not enough time left in the Administration to investigate and that we would have to wait for the next Administration. Now that they have been given the White House, they are insisting that we need to look forward and not behind.
The latest theme seemed to be what Obama was raising in the interview. When asked about his position, he immediately stated his “belief that we need to look forward as opposed to looking backwards.” He then defended those who committed the torture: “And part of my job is to make sure that, for example, at the C.I.A., you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got spend their all their time looking over their shoulders.”
No one seriously expects the torturers to be prosecuted, though I have far less sympathy for people who commit torture. In a nation committed to the rule of law, people should be looking over their shoulder when they are contemplating a war crime.
Jonathan Turley is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory to tort law. After a stint at Tulane Law School, Professor Turley joined the GW Law faculty in 1990, and in 1998, became the youngest chaired professor in the school’s history.
For the interview, click here.
For the full story, click here.
BACKGROUNDER— as reported by The New York Times
January 12, 2009
Obama Reluctant to Look Into Bush Programs
WASHINGTON — President-elect Barack Obama signaled in an interview broadcast Sunday that he was unlikely to authorize a broad inquiry into Bush administration programs like domestic eavesdropping or the treatment of terrorism suspects.
But Mr. Obama also said prosecutions would proceed if the Justice Department found evidence that laws had been broken.
As a candidate, Mr. Obama broadly condemned some counterterrorism tactics of the Bush administration and its claim that the measures were justified under executive powers. But his administration will face competing demands: pressure from liberals who want wide-ranging criminal investigations, and the need to establish trust among the country’s intelligence agencies. At the Central Intelligence Agency, in particular, many officers flatly oppose any further review and may protest the prospect of a broad inquiry into their past conduct.
In the clearest indication so far of his thinking on the issue, Mr. Obama said on the ABC News program “This Week With George Stephanopoulos” that there should be prosecutions if “somebody has blatantly broken the law” but that his legal team was still evaluating interrogation and detention issues and would examine “past practices.”
Mr. Obama added that he also had “a belief that we need to look forward as opposed to looking backwards.”
“And part of my job,” he continued, “is to make sure that, for example, at the C.I.A., you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got spend their all their time looking over their shoulders.”
The Bush administration has authorized interrogation tactics like waterboarding that critics say skirted federal laws and international treaties, and domestic wiretapping without warrants. But the details of those programs have never been made public, and administration officials have said their actions were legal under a president’s wartime powers.
There was no immediate reaction from Capitol Hill, where there has been a growing sense that Mr. Obama was not inclined to pursue these matters. In resisting pressure for a wider inquiry, he risks the ire of influential Democratic lawmakers on Congressional judiciary and intelligence committees and core constituencies who hoped his election would cast a spotlight on President Bush’s antiterror efforts.
The issue will also be an important early test of his relationship with conservatives in Congress and the country’s intelligence agencies; both groups oppose any further review.
On other terrorism issues, Mr. Obama suggested in the interview that his approach might be more measured. He said the closing of the detention center at Guantánamo Bay, Cuba, which once seemed to be an early top objective, was not likely to happen during the first 100 days of his administration.
“It is more difficult than I think a lot of people realize,” Mr. Obama said, “and we are going to get it done. But part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom who may be very dangerous, who have not been put on trial or have not gone through some adjudication.”
Mr. Obama has in the past condemned waterboarding, and he was explicit in the interview that he regarded the use of the technique, in which a subject is made to believe that he is drowning, as torture, prohibited by statute. And the president-elect said he disagreed with Vice President Dick Cheney, who has defended the practice.
“Vice President Cheney, I think, continues to defend what he calls extraordinary measures or procedures when it comes to interrogations,” Mr. Obama said, “and from my view, waterboarding is torture.”
Mr. Obama’s choice for attorney general, Eric H. Holder Jr., is widely expected to be asked about his views on these issues at his confirmation hearing this week. Associates say Mr. Holder is open to prosecutions based on specific accusations but is less eager to use the criminal law to commence wide-ranging inquiries. Before being chosen for the Obama cabinet, he said there should be “a reckoning” over Bush administration policies.
Lawyers who represented Bush administration officials over the years expressed little surprise that Mr. Obama’s legal and national security team had lost whatever appetite it might have had for delving into alleged misdeeds of the Bush years.
“A new president doesn’t want to look vengeful,” said a former Bush White House lawyer, Bradford A. Berenson, who was a Harvard law classmate of Mr. Obama and has represented administration figures as a private lawyer, “and the last thing a new administration wants to do is spend its time and energy rehashing the perceived sins of the old one.
“No matter how much the Obama administration’s most extreme supporters may be screaming for blood, the president himself doesn’t seem to share that bloodlust.”
Moreover, any effort to conduct a wider re-examination would almost certainly provoke a backlash at the country’s intelligence agencies.
Mark Lowenthal, who was the assistant director for analysis and production at the C.I.A. from 2002 to 2005, said if agents were criminally investigated for doing something that top Bush administration officials asked them to do and that they were assured was legal, intelligence officers would be less willing to take risks to protect the country.
“There are just huge costs to the day-to-day operation of intelligence,” Mr. Lowenthal, now the president of the Intelligence and Security Academy, said of a potential investigation. He added that he saw no benefit to such an effort because, he said, the public was not clamoring for it.
But it may be difficult for Mr. Obama to resist the pressure for a fuller public accounting, and lawmakers appear ready to proceed even without his support.
The House Judiciary Committee chairman, Representative John Conyers Jr., Democrat of Michigan, has already introduced a measure to create a commission to investigate Mr. Bush’s detention, interrogation and rendition policies. Mr. Conyers’s bill would establish a bipartisan nine-member commission with subpoena power and a mandate “to investigate the broad range of policies” undertaken with claims that Mr. Bush’s wartime powers as commander in chief trumped laws and treaties.
The measure by Mr. Conyers is not the only sign that Congress may force the issue. Senator Ron Wyden of Oregon, the second-ranking Democrat on the intelligence committee, said such a commission might not be necessary because the panel itself would press the administration to declassify as much information about C.I.A. prisons as possible.
“With regard to the C.I.A. interrogation program,” Mr. Wyden said in an interview, “if you want to make a break with the flawed policies of the past, as the president-elect has said he wishes to do, you have got to come clean about what happened over the past eight years, and that is why I’m going to push very hard to declassify these documents.”
Mr. Obama’s legal team could also be forced to react to litigation pending before federal courts. For example, the Bush administration has invoked the state-secrets privilege to avoid disclosing information about its surveillance program being sought in a civil lawsuit. The Obama legal team will have to decide how to handle that case.
In a related area, Mr. Conyers has indicated that he intends to keep pressing a House Judiciary Committee investigation into the Bush administration’s firings of nine United States attorneys and other accusations of political favoritism in hiring at the Justice Department.
The Bush administration has blocked subpoenas from Congress for documents and testimony by White House officials in that case, citing executive privilege. Last week, Mr. Conyers reissued the subpoenas to Mr. Bush’s chief of staff, Joshua B. Bolten, and his former White House counsel, Harriet E. Miers, in the name of the new Congress, ensuring that a lawsuit over the dispute will stay alive into the Obama presidency.
Mr. Obama is facing even more intense pressure from liberal, human-rights and civil-liberties groups to allow some kind of investigation into the Bush administration’s terrorism policies.
Chris Anders, senior legislative counsel at the American Civil Liberties Union, said it would be a simple matter to start such an inquiry because the Justice Department’s special prosecutor, John H. Durham, is already investigating whether the C.I.A. acted illegally when it destroyed videotapes of its harsh interrogations. Mr. Anders said Mr. Durham’s mandate could be expanded to look into whether the interrogations depicted on the tapes were illegal.
Some groups are focused on prosecution. Michael Ratner, president of the Center for Constitutional Rights, said prosecution efforts were justified, even if they did not lead to convictions, as a way to deter future officials from undertaking a similar “assault on the law itself.”
Other groups want fuller public disclosure. They favor a commission that would answer lingering questions about exactly what happened — like disclosing how many Americans were wiretapped without warrants and making a detailed accounting of what interrogators did to each detainee and the real value of the information they obtained through the enhanced tactics.
“One of the things that is going to have to happen is an examination and, to the extent possible, a public airing of the validity of the claims that these policies enhanced our security,” said Elisa Massimino, the executive director of Human Rights First. “Because there is a lot of reason to think that calculus hasn’t been accurate.”