Obama's Quandary: To Prosecute Or Not
If Barack Obama thought last week's release of four Justice Department memos would bring closure to the controversy surrounding the Bush administration's authorization of torture against "high value" detainees, he'll need to think again.
As The Washington Post's Dan Balz explains, President Obama finds himself at the center of a debate that has both ends of the political spectrum up in arms. "Having tried to find a way through this legal and political thicket, Obama has learned that cleaning up after Bush will be an ongoing challenge," Balz writes.
When the Justice Department released the memos last week, President Obama ruled out any intention of prosecuting CIA officials acting in "good faith" on the legal advice of Justice Department officials. "This is a time for reflection, not retribution," Obama said.
But yesterday, the president left open the possibility of legal consequences for those who authored the guidelines -- an apparent contradiction to comments Chief of Staff Rahm Emanuel made in a Sunday television interview.
In an online discussion with Washington Post readers, American University constitutional law professor Stephen Vladeck today characterized the current debate as a matter of "who knew what."
It's one thing for government officials to act based upon what they reasonably believe is legal. It's another thing altogether for those officials to undertake conduct that they knew (or should have known) was unlawful. That's why the debate over these memos is so central to the current conversation. I think it's entirely possible that a CIA officer or servicemember could reasonably have believed that they received correct advice about the state of the law, but given how little they who wrote the memos seemed to care about prior legal precedent, it might be harder for those officials to claim that they were acting in good faith.
Vladeck continued on the subject of whether lawyers may be held responsible:
There is precedent for charging lawyers for the misconduct of their clients when the lawyers have actively facilitated their clients' unlawful activities. The question, then, would be whether they knew that they were condoning conduct that was actually in violation of both domestic and international law, or whether, instead, they were just sloppy.
As we await clarity on the White House's position, here's a roundup of all the torture-related documents released in recent days.
» The International Committee of the Red Cross issued a report in February 2007 documenting their visits with 14 "high value" detainees in September 2006. The report was disclosed in its entirety by journalist Mark Danner in the New York Review of Books.
» Last week, Attorney General Eric Holder released four memos issued to CIA lawyers by the Justice Department's Office of Legal Counsel between August 2002 and May 2005: Aug. 1, 2002, Memo; May 10, 2005, Memo 1; May 10, 2005, Memo 2; May 30, 2005, Memo.
» Today, the Senate Armed Services Committee released a summary of their own investigation into detainee treatment: Inquiry Into the Treatment of Detainees in U.S. Custody, Nov. 20, 2008.
As Time notes, we should also be expecting the Justice Department to release an ethics report on the actions of the lawyers behind the memos: Steven Bradbury, Jay Bybee and John Yoo.
By Amanda Zamora |
April 22, 2009; 5:00 PM ET
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