Tuesday, April 21, 2009

Not Off the Hook

Just because President Obama has ruled out prosecuting CIA officials for harsh interrogation techniques, that doesn’t mean that the lawyers who put them up to it are in the clear.

Mr. Obama said it was time to admit “mistakes” and “move forward.” But there were signs that he might not be able to avoid a protracted inquiry into the use of interrogation techniques that the president’s top aides and many critics say crossed the line into torture.

And while Mr. Obama vowed not to prosecute C.I.A. officers for acting on legal advice, on Monday aides did not rule out legal sanctions for the Bush lawyers who developed the legal basis for the use of the techniques.

The president’s decision last week to release secret memorandums detailing the harsh tactics employed by the C.I.A. under his predecessor provoked a furor that continued to grow on Monday as critics on various fronts assailed his position. Among other things, the memos revealed that two captured Qaeda operatives were subjected to a form of near-drowning known as waterboarding a total of 266 times.

Some Bush administration officials, including former Vice President Dick Cheney, accused the administration of endangering the country by disclosing national secrets. Mr. Cheney went on the Fox News Channel to announce that he had asked the C.I.A. to declassify reports documenting the intelligence gained from the interrogations. Gen. Michael V. Hayden, the former C.I.A. director, has also condemned the release of the memorandums and said the harsh questioning had value.

On the other side of the spectrum, human rights activists, Congressional Democrats and international officials pressed for a fuller accounting of what happened. Senator Dianne Feinstein, a California Democrat and chairwoman of the Intelligence Committee, wrote Mr. Obama asking him not to rule out prosecutions until her panel completed an investigation over the next six to eight months.

This is pretty clever; the president says he wants to move forward so that when Congress starts to look into impeaching Jay Bybee, who was one of the assistant attorney generals who wrote one of the memos and is now a judge, the president can say he had nothing to do with it, nor will he ignore those who went over the line.

The administration has also not ruled out prosecuting anyone who exceeded the legal guidelines, and officials have discussed appointing a special prosecutor. One option might be giving the job to John H. Durham, a federal prosecutor who has spent 15 months investigating the C.I.A.’s destruction of videotapes of harsh interrogations.

As the debate escalated, Mr. Cheney weighed in, saying that if the country is to judge the methods used in the interrogations, it should have information about what was obtained from the tough tactics.

“I find it a little bit disturbing” that “they didn’t put out the memos that showed the success of the effort,” Mr. Cheney said on Fox News. “There are reports that show specifically what we gained as a result of this activity.”

What we gained is a reputation as cynical hypocrites who talk about freedom and the rule of law only when it suits the defense of the indefensible, and it sounds like someone is trying out an opening argument at a criminal trial.

President Obama can talk about “moving forward,” but one of the ways we can do that is to make up for the mistakes of the past and learn from them. Prosecuting the offenders is a good way to start.