Obama flip-flops on potential torture prosecutions

posted at 1:33 pm on April 21, 2009 by Ed Morrissey
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Jim Geraghty’s axiom continues to apply as another Barack Obama Position Expiration Date arrives.  After a series of rebuffs towards those who want war-crimes trials against Bush administration officials for allegedly approving torture, Obama reversed himself today and suggested that such trials might take place.  Jake Tapper gives the details:

President Obama suggested today that it remained a possibility that the Justice Department might bring charges against officials of the Bush administration who devised harsh interrogation policies that some see as torture. …

The Bush-era memos providing legal justifications for enhanced interrogation methods “reflected us losing our moral bearings.” The president said that he did not think it was “appropriate” to prosecute those CIA officers who “carried out some of these operations within the four corners of the legal opinions or guidance that had been provided by the White House.”

But in clear change from language he and members of his administration have used in the past, the president said that “with respect to those who formulated those legal decisions, I would say that is going to be more of a decision for the Attorney General within the parameters of various laws and I don’t want to prejudge that. I think that there are a host of very complicated issues involved there.”

Just yesterday, asked by a reporter as to why the administration was not seeking to “hold accountable” Bush administration lawyers who may have “twisted the law,” White House press secretary Robert Gibbs said, “the president is focused on looking forward, that’s why.”

And now he’s focused on the past?  If so, it may be because Obama decided that he couldn’t take any more heat from the far Left.  They’ve been wanting blood for years and expected to get it with a Democrat in the White House and Democrats controlling Capitol Hill.  Obama did a pretty good job of putting them off for three months, but apparently that’s the limit of his endurance.

In some ways, though, Obama put himself in an untenable position.  The self-proclaimed Constitutional scholar had argued all along that the US broke laws during interrogations, and made that point again when it released the Bush-era OLC memos.  In a nation of laws, how does one make that claim as President and not allow the supposed crimes to be probed?  Listening to the rhetoric, this flip-flop was entirely predictable.

Obama can open the door to prosecutions, but who will he prosecute?  He’ll find it difficult to go after the interrogators, who relied on some strange opinions from the normally-binding Office of Legal Counsel.  The prosecution can try undermining that by claiming it as a Nuremberg defense, but this wasn’t Nazi Germany and the OLC exists to give this kind of legal direction.  Interrogators relied on those interpretations in good faith.

That leaves George Tenet and the OLC attorneys, but they didn’t conduct the torture, and the OLC didn’t order the interrogations, either.  They responded to a request from the CIA to opine on the legality of the procedures.  Holder can prosecute Tenet, but then he’d also have to file charges against several members of Congress who were briefed on the procedures and never objected — including current Speaker Nancy Pelosi.  If Tenet would get prosecuted for ordering the interrogation techniques, then Pelosi and others would have to get prosecuted for being accessories in not taking action to stop them.

Obama had it right in the first place.  He made the decision to ban those procedures, and he should just keep looking forward.  If those interpretations were flawed, and I’d agree that at least some of them were, they’ve been withdrawn.

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