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Unfortunately I believe that we are limited in what we can focus on. I think that if we proceed with the partisan sideshow of prosecuting Bush admin. officials, healthcare will get lost in the brouhaha.
— Posted by denamom, Obama's Quandary...

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Obama's Quandary: To Prosecute Or Not

POSTED: 05:00 PM ET, 04/22/2009 by Amanda Zamora

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
Previous: Report Details Interrogation Plans; U.S. May Drop Espionage Charges; Quadrangle Caught in Pension Probe | Next: Rice Greenlighted CIA Methods in '02; Freddie Disclosures Examined; Lewis: U.S. Urged Silence on Merrill Deal


Please email us to report offensive comments.

It's not Obama's decision to prosecute. Now that the memo's have been released, let the Justice Department investigate, let the Congress investigate, let the Bar association investigate. Let's see what really happened and then we can talk about what to do about it.

Let's give 'em a fair trial and then hang 'em.

Posted by: thebobbob | April 22, 2009 5:32 PM

It is not Obama's call to prosecute anyone. He may have an opinion, but it's up to the DOJ and congress to decide what if anything should happen.

The memos that were released this week were in response to a lawsuit that had run it's course and could not be defended further. The disclosure was compelled by that lawsuit.

Obama's plate is plenty full. I don't think that given the economy and two wars, this is a fight that he would have preferred for obvious reasons. He is doing the right and legal thing by allowing the DOJ and or congress to pursue the matter as they see fit, if they see fit.

The issue of torture is not a political issue any more than your typical everyday burglary is political. They are both legal matters, it is about law. A country built on laws, cannot look the other way on this issue and ever expect to be taken seriously by anyone ever again.

The rule of law has to prevail, otherwise it is 100% completely meaningless.

An investigation is in order, otherwise this issue will be an open wound that will fester endlessly. Wrongs if any, must be addressed. That would be the American thing to do.

Oh, and if a democratic president had authorized torture... the righties would be acting like berzerk rabid hyenas right now. Remember how upset they got at a Clinton sex scandal?

No, don't even go there, wingnuts.

Posted by: jfern03 | April 22, 2009 5:51 PM

3000 American citizens who did NOTHING but go to work one day are DEAD! You POS Liberal morons are now worried that a few KILLERS got waterboarded, lost some sleep and were stripped naked! Now we're supposed to prosecute those who interrogated these KILLERS and more than likely STOPPED ANOTHER ATTACK?

What a sorry bunch of SOBs you POS liberals are!Worried more about the KILLERS than the Americans whoe lost their lives and their families!

Posted by: SierraSam | April 22, 2009 6:00 PM

i am an obama supporter. but if holder doesnt appoint aspecial prosecutor i feel it will be a one term presidency. this is about the only thing that will knock obama down the republicans cant do it. only he and his cabinet can seal his relection.

Posted by: donaldtucker | April 22, 2009 6:07 PM

Why does anyone even consider giving a "Get out of Jail Free" card to senior politicos, officers, and lawyers? Since when is ignorance of the law an excuse for violating the law? Ignorance---these people tried to rewrite the law, throw out the Constitution, and lied to America.

Those in the Executive and Legislative branches should be held to the highest legal standards! There should be no exceptions.

This is just one more example of politicians holding themselves and other politicians exempt from standards of conduct.

Posted by: ChoKum | April 22, 2009 7:08 PM

Obama has mishandled this. The position he holds now..that it is up to the DOJ/AG to decide if prosecutions are where he should have started. If prosecutions take place and people are convicted and he still feels that punishment isn't warranted he could, as President, pardon them or, like Gerald Ford, he could pro-actively pardon anyone he felt shouldn't be punished.

Posted by: PatriotMike | April 22, 2009 7:52 PM

There really is no reason for the White House or either chamber of Congress to initiate investigations or hearings nor do they need to begin turning stones.

Armed with the freedom of information laws augmented by Pres. Obama's order to cooperate versus hinder, there are more than enough truth-seeking and/or left-leaning "watchdog" organizations out there with a bone to pick salivating to get a look at the archives that spending tax dollars to do anything - beyond the Dept. of Justice doing their duty if and when justifications surface - would just be more wasted tax dollars.

Posted by: EuroAm | April 22, 2009 10:54 PM

"3000 American citizens who did NOTHING but go to work one day are DEAD! You POS Liberal morons are now worried that a few KILLERS got waterboarded, lost some sleep and were stripped naked! Now we're supposed to prosecute those who interrogated these KILLERS and more than likely STOPPED ANOTHER ATTACK?

"What a sorry bunch of SOBs you POS liberals are!Worried more about the KILLERS than the Americans whoe lost their lives and their families!" -- SierraSam

Most of us who live in NYC, who actually had friends, family, and colleagues who died that horrible day don't support torture. Only sanctimonious morons like you believe that the very liberties and morals so many have fought and died for in our country's history can so easily be thrown away in anger and misplaced righteousness.

You are the reason the rest of the world hates America, and why they will continue to attack us. Because of you who so easily condone the TORTURE of suspected but not convicted suspects are why our soldiers continue to be attacked and perhaps tortured. If we have another 9/11, blame yourself, you sub-human imbecile.

Posted by: Pupster | April 23, 2009 12:04 AM

We need an investigation by the Department of Justice as to who issued the orders allowing torture. It is not President Obama's decision to make. Whoever issued the orders is responsible....not the attorneys. The previous administration needs to be held accountable for the decisions/mistakes they made. For all the damage they have done to this country, accountability is long overdue. If you don't prosecute, future presidents will get the message that ignoring the law has no consequences. We also need to stand by the Geneva Convention. Does anyone understand that we don't torture prisoners in order to protect our own soldiers? Why put our soliders' lives in unnecessary danger by having other countries torture them?
We need other countries co-operation in hunting down terrorists. By prosecuting those who ordered torture, we will restore America's image in the eyes of the world. We don't need to act the way the terrorists do. Torture is not an American "value".

Posted by: jantigard | April 23, 2009 12:45 AM

From interviews I have seen with Woo, I believe those lawyers thought they didn't need to ferret out the law, I believe they decided they could make the law, and I think they didn't care what our constitution or statues had to say in contradiction of their predetermined positions. Apparently they didn't even do research into what past administrations had done/determined. So I think Woo, and Bybee and Bradbury, should be investigated at the very least. And anybody who was found to tell them to come up with pro-torture conclusions. But not anybody who merely followed their advice.

Posted by: msame | April 23, 2009 8:16 AM

Unfortunately I believe that we are limited in what we can focus on. I think that if we proceed with the partisan sideshow of prosecuting Bush admin. officials, healthcare will get lost in the brouhaha.

Posted by: denamom | April 23, 2009 1:21 PM

Prosecution of those responsible for torture will create a spate of hateful abuse on the part of the Republicans and much infighting along party lines. Obama's attention must be fully focused on stabilizing the economy, not refereeing a congressional battle. Although the torture practices were an abomination and in violation of the Geneva Convention, Bush II and his cohorts are no longer in office. Let the new administration simply adopt more humane procedures.

Posted by: masona29 | April 23, 2009 5:22 PM

I suspect the irony of the fact that blacks were routinely lynched and tortured in America and the Justice Department did nothing is not lost on Holder.

Posted by: russell11 | April 26, 2009 2:37 AM

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