Will Obama Prosecute Bush's Team For Torture?

Manuel Balce Ceneta/AP Bush could risk his legacy by pardoning his closest staff. Or he could take the gamble that Obama will give his team a pass.

George W. Bush, lamest lame-duck president ever, is playing a hard and fast game of chess with President-elect Barack Obama. In one sense the game has to do with Bush’s legacy. In another it may have to do with the legal vulnerabilities of a few dozen senior administration officials who were involved in the formation and implementation of what Bush called “the program,” a secretive process of highly coercive interrogation techniques that included waterboarding, long-time standing, hypothermia, prolonged sleep deprivation and the use of psychotropic drugs. In the 2008 presidential debates, however, both John McCain and Barack Obama used a different shorthand description for the program, namely “torture.” For those who were close to the program, that was a blast of icy wind.

Two days before Thanksgiving, as Bush staged the annual exercise of presidential clemency on a certain hefty fowl associated with Thanksgiving dinner, Bush insiders floated another pardon-themed story. The White House addressed public curiosity about which further pardons the future might hold. The president really didn’t need to issue a sweeping preemptive pardon to the administration officials who collaborated in the introduction of the torture program. “People familiar with the situation” told the Wall Street Journal that Bush “isn't inclined to grant sweeping pardons for former administration officials involved in harsh interrogations and detentions of terror suspects.” That’s not because Bush is unconcerned with accountability issues, apparently. The Journal suggests that Bush has accepted the view of his attorney general, Michael Mukasey, that the Justice Department has provided effective legal cover.

The Bush “torture program,” if allowed to pass without challenge, will be a precedent to which future presidents may turn. What are the new president’s options?

Speaking to an annual meeting of the Federalist Society on Nov. 20, Mukasey stated, “Before conducting interrogations, the CIA officials sought the advice of the Department of Justice, and I am aware of no evidence that these DOJ attorneys provided anything other than their best judgment of what the law required." His presentation unfolded as if it had been conjured by the dark fantasy of Franz Kafka. Shortly before Mukasey uttered these words, Richard Sanders, a justice of the Washington State Supreme Court and long-time Federalist Society member, rose to his feet and denounced Mukasey shouting: “Tyrant! You are a tyrant!” Almost as soon as these words were uttered, the attorney general bent over and fell to the floor, his fall broken by an attentive member of his FBI security detail. Luckily, it was merely a fainting spell, not a heart attack or stroke. Still, the event provided a bizarre punctuation point to a strange evening.

The White House leak to the Journal and the Mukasey speech were designed to send a signal to Obama that no blanket pardon would be issued. Of course, Bush, whose public approval numbers continue to hover around worst-days-of-Watergate levels, is anxious about the further damage a slew of controversial pardons would do. He and his advisors are equally troubled about the appearance of the pardons. They would suggest that conduct that the administration held up as lawful and proper really was criminal all along. Bush is gambling that Barack Obama will bail him out by making a commitment not to pursue the matter.

Inside the Obama camp, a parallel drama about the torture issue is unfolding. Obama faces a number of conflicting considerations. He is intent on pursuing his own agenda and grappling with a serious crisis of financial institutions. He wants to avoid distractions. Obama is eager to avoid an appearance of revenge or retaliation against the Bush administration. But he also recognizes that the torture question raises more than just a simple policy dispute. At its core is a question of adherence to the rule of law and in particular the criminal law constraints on the exercise of presidential power.

Some of Obama’s most loyal followers, particularly civil libertarians, human rights advocates and religious groups, are keenly interested in the issue—and indeed, they recently raised strong opposition to the idea that former CIA director George Tenet’s chief of staff, John O. Brennan, an Obama adviser, would head the agency. Although Brennan faithfully reflected candidate Obama’s viewpoint during the campaign, a number of writers flagged statements he made in a series of televised interviews in which he defended CIA practices, including the program of extraordinary renditions—which Obama has committed to end. Then 200 prominent psychologists addressed a letter to Obama reviewing Brennan’s public statements about torture and calling on the President-elect not to nominate him to head the CIA.

Recognizing that his nomination would embroil the Obama presidency in distracting controversy, Brennan took his name out of consideration. But he also struck back at his critics saying that his position on torture had been mischaracterized and insisting that he had not been “involved in the decision-making process.” The controversy over Brennan was the first of what may yet be a series of skirmishes over how Obama handles the torture issue.

Those raising the issue are not really focused on retribution or the punishment of Bush administration officials. The American political system operates on the basis of precedents and their concern is that the Bush torture program, if allowed to pass without challenge, will be a precedent to which future presidents may turn.

What are the new president’s options? He certainly could not simply have his attorney general launch a criminal probe. The criminal justice system demands that investigations operate apart from the world of political decision making. So, he has two other options: appoint a commission to investigate the matter and render a report or simply walk away.

A number of voices have been raised in opposition to the commission proposal: former Justice Department lawyers Bob Litt and Jack Goldsmith, former CIA official John Brennan, and a number of Congressional leaders, including Speaker of the House Nancy Pelosi. They all raise principled concerns about the adverse effect an inquiry would have and urge the country, in effect, to “move on.” An even more extreme position is staked out by William Kristol, who characterizes the engineers of the torture policy as heroes and suggests that Bush both pardon them and give them the Presidential Medal of Freedom.

Perhaps unsurprisingly, each has his or her own particular reason to fear coming under a commission’s scrutiny. Litt has been hired as counsel to former CIA general counsel Scott Muller, whose conduct Mukasey puts squarely in the center of the decision to introduce torture. Brennan helped assemble and run the CIA’s counterterrorism center and may have been involved in implementation of some aspects of the controversial policy. Goldsmith, who published an op-ed in the Washington Post on November 26 opposing a commission, was a junior member of the “war council” of Bush administration lawyers closely tied to the introduction of torture as a matter of policy; he also served as a legal advisor to Defense Department general counsel Jim Haynes, whose role was key to the entire process. Any commission would be scrutinizing Goldsmith’s work and dealings very closely. And congressional leaders like Nancy Pelosi, Jay Rockefeller (of the Senate Intelligence Committee) and Jane Harman (of the House Intelligence Committee), were members of the “Gang of Eight” briefed on the details of their program. Any commission would certainly reflect on the problems of congressional oversight of the torture program and especially the curious silence of the Democratic leadership.

So how will Barack Obama deal with this troubling question? Obviously, if Bush issues a blanket pardon, it would make the issue much simpler, taking the sting out of a probe. Bush would have to cope with the public anger that such pardons usually provoke. And that explains why Bush has sent a signal—though not one that binds him in any way—that he won’t issue a pardon.

Time is on Obama’s side. He has no need to make any final decisions on the matter until after Bush leaves the Oval Office. That would leave it to Bush to take the sort of gamble he’s taken many times in his presidency—or not. Only this time, it would reflect on the responsibility and culpability of some of his closest advisors.

Scott Horton is a law professor and writer on legal and national security affairs for Harper's Magazine and The American Lawyer, among other publications.