Obama Quells One Uproar Over DOJ Memos

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Congressional Democrats welcomed President Barack Obama’s statement Tuesday that he would allow Attorney General Eric Holder to determine whether Bush administration officials who devised harsh methods for interrogating terrorism suspects should be prosecuted.

The president’s openness to charges against aides to former President George W. Bush contradicted statements made in recent days by two of Obama’s closest advisers. Those statements provoked a sharp rejoinder from Senate Intelligence Chairman Dianne Feinstein (D-Calif.) and intense protests from other Hill Democrats.

Appearing Sunday on ABC’s “This Week,” White House Chief of Staff Rahm Emanuel said Obama believes that “those who devised policy ... should not be prosecuted, either, and that’s not the place that we go.” He quoted Obama as writing, “This is not a time for retribution.”

Emanuel’s statement was not an isolated slip of the tongue. On Monday, White House Press Secretary Robert Gibbs reaffirmed it.

Gibbs was asked during Monday’s daily briefing why “the Bush administration lawyers” are “not being held accountable.”

He replied, “The president is focused on looking forward, that’s why.”

But on Tuesday, Obama said Holder should decide, though he repeated an assertion that his preferred posture is one of “looking forward and not looking backward.” He nevertheless held to his view that those who performed the interrogations should not be charged as long as they were following what they understood to be the law.

Obama on Tuesday also expressed new openness to establishing a panel to investigate Bush interrogation policies, though he said the committee should not be allowed to devolve into an arena for partisan combat.

The commission should include “independent participants above reproach,” Obama said.

Gibbs explained that this meant Obama didn’t want lawmakers on the panel, though Gibbs was polite enough to suggest the president doesn’t completely rule out having some Members serve.

The striking turnabout came as the administration began to incur fire from its allies for appearing to exclude policymakers from culpability. The methods sanctioned by Bush’s legal advisers were harsh and, in the view of many Democrats, included torture.

Feinstein fired off a letter to Obama demanding that White House officials refrain from opining on whether to prosecute the lawyers who drew up the menu of permissible interrogation techniques.

Feinstein has been conducting her own review of U.S. interrogation policies.

On Tuesday, Feinstein welcomed Obama’s update to his advisers’ statements on holding the Bush attorneys accountable. “I don’t look at that as a reversal. I look at that as a step forward, simply holding judgment until the Senate committee has been able to complete its work.”

Intelligence Committee member Sheldon Whitehouse (D-R.I.) said he had always felt that Obama left open the possibility of prosecuting not just the authors of the interrogation rules, but also any CIA agents or private contractors who in practice exceeded them.

“I felt what [Obama] said the first time was, ‘Look we’re not going to prosecute people who acted in good faith, who reasonably relied on orders and legal authorities and who acted within the boundaries of those authorities.’ That’s not so much a presidential position or a pledge as it is a statement of the law,” Whitehouse said.

Asked whether he was privy to information showing that CIA agents or contractors used harsh interrogation techniques that the memos outlining the rules of questioning did not sanction, Whitehouse indicated that those questions were under review.

“It’s way too early to say that the opposite is true, that nobody did,” he said.

He particularly singled out private contractors who aided the government’s interrogation of terrorism detainees, saying, “There’s a whole array of questions that arise from a for-profit private contracting entity being involved in the application of these kinds of techniques and enormous questions about what the motivation is. Are you at some point doing this to make more money and have more expertise and find out more about how people react to abusive techniques which is then a corporate asset for your contracting practice?”

Senate Judiciary Chairman Patrick Leahy (D-Vt.) applauded the president’s apparent endorsement of his push for an independent “Commission of Inquiry” to look into how the interrogation policy was created in the Bush administration.

“I’m going to continue my investigation if we don’t have an accountability commission. I think an accountability commission would be the best thing to do because ultimately we’ve got to get all the facts out, let people know who did what,” Leahy said.

Leahy also called on one of the memos’ authors — former Justice Office of Legal Counsel lawyer Jay Bybee — to resign from his current post as a 9th Circuit Court of Appeals judge. Leahy said Bybee and the Bush White House misled the Judiciary Committee during its 2003 review of his nomination.

“If the White House and Mr. Bybee had told the truth at the time of his nomination, he never would have been confirmed. So the honorable and decent thing for him to do now would be resign,” Leahy said.

Leahy stopped short of joining calls from House Democrats to impeach Bybee. The House must act first in any impeachment proceedings.

Whitehouse said the facts so far point to a case for impeachment, but said the House should wait for the Justice Department’s Office of Professional Responsibility to produce a report on whether Bybee or his successor at the OLC, Stephen Bradbury, violated internal department ethics in writing the memos.

“There’s clearly a whiff of impeachability about this whole thing. The question is whether the facts will bear that out,” Whitehouse said.

In his briefing Tuesday, Gibbs appeared to be at a rare loss to explain the discrepancies between his and Emanuel’s statements and the subsequent comments by Obama — other than to say effectively that Obama is the boss and what he says goes.

“You know, I — whether or not anybody was confused or misspoke, I would take what the president said as — I’m informed he got more votes than either of the two of us,” Gibbs said.