WASHINGTON — President Barack Obama and Congress are locked in a stare-down over how much to expose or punish Bush administration employees for any abuses they committed in waging the war on terrorism.
Obama, after critical rhetoric on the campaign trail, has sent mixed signals about how far he's willing to go. His concerns are grounded in pragmatism and politics.
Politically, pursuing Bush administration abuses could bog Obama down in partisan warfare with Republicans over the past, endangering his agenda for the future. Pragmatically, intelligence agency veterans have warned the new administration that investigations into the Bush administration's practices of interrogation, rendition and surveillance could damage U.S. intelligence efforts, lower morale in the intelligence community and expose the nation to greater danger.
At the same time, some Democrats in Congress are calling for a "truth commission" to expose such practices, one that might offer immunity in exchange for testimony. Others want criminal prosecutions.
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Democrats also are pressing Obama's Justice Department to make public a report, which began under the Bush administration, on the officials who crafted the legal justifications for controversial interrogation methods. Democrats also have proposed legislation tightening the terms of what presidents can claim as "state secrets."
Congressional Democrats can't achieve much by themselves, however. They'll need support from Obama and probably at least some Republicans. Obama also hasn't yet said whether he'll support a truth commission.
"If it was opposed by the White House, you're not going to get any legislation of any sort through, because it would be extraordinarily easy for every Republican to say no and a number of Democrats to say no," said Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., who's among those who are calling for a truth commission. "That's kind of realpolitik."
Republicans, meanwhile, say that if Obama pushes for a truth commission or prosecutions over the Bush administration's practices, they'll read that as an abdication of his promised bipartisanship and a declaration of political war.
"I don't think the Obama administration would want to have a truth commission to go back after he leaves office and the Republicans (regain) control, to see what he did," said Sen. Kit Bond of Missouri, the top Republican on the Senate Intelligence Committee.
"That's Third World country-type stuff," Bond said, "where you go in and prosecute; if you lose an election you get prosecuted. That has never been the American way. I think that the people of America would understand that that's not how this country is supposed to work."
Bond also argued that any wide airing of interrogation details and any broad threat of prosecutions would be devastating to future intelligence-gathering, would embolden terrorists and could be unreliable.
"Immunizing one person to get them to rat flows over to everyone else who isn't the rat and doesn't give you reliable information," Bond said. "If they tried to bring in people from the (CIA) who were actually involved in interrogations, who were operating under the guidelines of the Office of Legal Counsel, the shock and the impact on the intelligence community would be severe.
"If somebody disagrees with the (Office of Legal Counsel guidelines) and says, 'Well, the opinions were wrong, therefore we're going to prosecute them,' that would shut down — that would absolutely cripple — the intelligence community."
Because Republicans, if united, can block Senate action, any movement may have to come from the House of Representatives. There, Judiciary Committee Chairman John Conyers, D-Mich., wants a commission or hearings that could yield prosecutions, and Speaker Nancy Pelosi, D-Calif., has left the door open for such developments.
However, the House leadership has yet to agree on a strategy, aides said, and many Democrats are reluctant to clash with their new president because that could weaken party solidarity and damage prospects for other legislation.
Liza Goitein of the Brennan Center for Justice, which advocates investigation, concedes that for now prospects for criminal prosecution are "a nonstarter unless a smoking gun comes out," such as a new inspector general report.
"The details of a commission would be very important," she said, "but I think in some ways people are not engaging yet because we're still at the point of 'Should there be a commission or not?' "
Many Americans do want more information about — and some accounting for — any intelligence abuses. A USA Today-Gallup Poll earlier this month found that 38 percent of Americans favored a criminal investigation into possible torture of terrorism suspects and 24 percent favored establishing an independent panel to look into it.
Leahy said that Bond might be right about resistance to looking back, but "I hope he's not. I think we would miss all the illegalities that went on. It would be a serious mistake."
Leahy recalled the intelligence revisions that resulted from a 1970s congressional investigation into abuses.
"I'm not doing it with the idea of lining up a lot of prosecutions," Leahy said. "I'm doing it so that neither this administration nor the next administration will ever make the same mistakes."
Leahy said he'd try to persuade Obama to support his effort. "I will sit down with the president," he said.
Leahy's truth commission concept is gaining support. On Thursday, a broad coalition that included a former FBI director, a former undersecretary of state and a retired military general as well as various civil liberties groups issued a statement urging Obama to appoint a nonpartisan commission.
Since Obama took office, he's changed some administration practices but not others. He's ordered the end of CIA secret prisons and the closure within a year of the prison at Guantanamo Bay, Cuba, but he hasn't yet said what will happen to the detainees who are there.
He's told family members of victims of al Qaida attacks that he'll consider keeping a modified military-commission system to try terrorism suspects, which human rights activists oppose.
While they haven't ruled out investigations or prosecutions related to allegations of torture, wiretapping and renditions, the president, Attorney General Eric Holder and CIA director Leon Panetta have signaled that they're not eager to dig into the past.
In a recent court case in San Francisco, Obama's lawyers stunned civil liberties advocates by continuing the Bush administration's claim that state secrets require blocking detainee lawsuits.
They're also reserving the right to continue detainee renditions to third-party countries, and in extreme cases to hold detainees indefinitely or to use interrogation methods that aren't in the Army Field Manual.
Civil liberties activists say they're torn between their gut-level disappointment over some of these moves and appreciating the strong steps that Obama has taken on issues such as Guantanamo. They also say that he deserves some benefit of the doubt, since he's been president for only a month.
"The more generous interpretation is that they're not organized yet and they're just letting things play out," said Caroline Fredrickson, the director of the Washington legislative office for the American Civil Liberties Union. "We don't know."
Said Goitein of the Brennan Center for Justice: "I'm disappointed by some of the things that he's done and I'm also very happy about some of the things he's done, and on other things the jury is out."
Bond said he was generally pleased and not that surprised: "Campaign rhetoric meets national security reality."
Two U.S. intelligence officials told McClatchy that former CIA director Gen. Michael Hayden, and John Brennan, a former director of the National Counterterrorism Center who's now an adviser to Obama on counter-terrorism and homeland security, persuaded Panetta and other incoming administration officials that investigations into the Bush administration's anti-terrorism practices could open a Pandora's box.
"They convinced the administration that investigations and truth commissions would do more harm than good," one of the officials said.
The two officials, who spoke on the condition of anonymity because they aren't authorized to talk to the news media, said that Hayden and Brennan argued that legal action against former officials would be pointless because a parade of opinions from the White House counsel and the Justice Department had authorized their actions. They also argued that inquiries such as truth commissions would damage the careers and reputations of lower-ranking intelligence officers who, they said, never acted without approval and legal opinions from their superiors.
Panetta and Brennan couldn't be reached for comment.
In the executive branch, the CIA's inspector general and the Justice Department already are empowered to dig into what went on in the previous administration. Such investigations are under way in the Justice Department.
Bond said that route avoided political showmanship: "If they believe there was torture, then they would investigate it, and if they find evidence of it they should prosecute it."
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