President Barack Obama turned heads Tuesday by abruptly warming to the idea of a war-on-terror “truth commission” and by opening the door to prosecution of Bush administration lawyers and senior officials.
But major hurdles – and perhaps insurmountable ones — remain before either step could become a reality.
Congressional aides said it was far from clear that Obama’s first positive words about a blue-ribbon panel modeled on the 9/11 Commission would give the proposal, being advanced by Sen. Pat Leahy (D-Vt.) and Rep. John Conyers (D-Mich.), the momentum it needs to overcome a possible filibuster in the Senate.
“There’s some more support,” a House Democratic aide said in the wake of Obama’s comments yesterday. “I’m not sure if, on the Senate side, that’s shared.”
Senate staffers expressed doubt that Leahy could cobble together 60 votes, even with Obama softening the White House’s earlier resistance to a commission. Potential Republican supporters of such a commission, such as Sen. John McCain (R-Ariz.), said yesterday they did not support creating a panel.
Leahy’s statement, which might have been expected to celebrate the White House’s change of heart, was instead unusually subdued.
“I agree with President Obama: an examination into these Bush-Cheney era national security policies must be nonpartisan,” Leahy said. “Unfortunately, Republicans have shown no interest in a nonpartisan review. Nonetheless, the consensus to review these policies is growing, and I will continue to develop this proposal.”
For weeks, White House aides have been deflecting questions about a commission by saying the president wanted to look forward, not backwards. So Obama took reporters by surprise when he suddenly signaled openness to a commission during an Oval Office press availability with King Abdullah of Jordan.
“If and when there needs to be a fuller accounting of what took place during this period, I think for Congress to examine ways that it can be done in a bipartisan fashion, outside of the typical hearing process that can sometimes break down and break entirely along party lines, ... that would probably be a more sensible approach to take,” Obama said in response to a question.
In a nod to continuing opposition to the idea in the intelligence community, Obama stopped short of endorsing a “truth commission” while making clear his preferences if Congress is intent on pursuing alleged torture, warrantless wiretapping and other issues.
“I’m not suggesting that that should be done but I’m saying, if you’ve got a choice, I think it’s very important for the American people to feel this is not being done — to provide one side or the other political advantage but rather it’s being done in order to learn some lessons so that we move forward in an effective way,” Obama said.
Obama also expressed concern that a fact-finding effort could evolve into a political battle that would distract the country’s security apparatus. “I do worry about this getting so politicized that we cannot function effectively and it hampers out our ability to carry out critical national security operations,” he said.
The president said any hearings into torture should have “independent participants who are above reproach and have credibility.”
White House Press Secretary Robert Gibbs later said he believes Obama views the 9/11 Commission as a model. “The 9/11 Commission was comprised of very respected members that, despite being Democrats or Republicans, put their party identification away in order to answer some very serious questions,” Gibbs said. “So without prejudging whether a commission should be set up, I think that's what he had in mind in answering that question.”
Gibbs faced a barrage of far more keptical questions from reporters about Obama’s statement that while he has promised not to prosecute Central Intelligence Agency interrogators who relied on official legal advice, that amnesty does not extend to those who drafted the legal opinions authorizing the harsh interrogation tactics.
“I would say that 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,” the president said.
In a television interview Sunday, Obama’s chief of staff, Rahm Emanuel, said there would be no prosecutions of those who crafted the interrogation policies.
“Those who devised policy, [Obama] believes that they…should not be prosecuted either, and that's not the place that we go,” Emanuel said, before quoting the written statement in which the president called it a time for “reflection” and not “retribution.”
On Monday, Gibbs seemed to endorse Emanuel’s view, but yesterday he suggested both he and the chief of staff misstated the president’s position.
“Whether or not anybody was confused or misspoke, I would take what the President said as -- I'm informed he got more votes than either of the two of us,” the press secretary said.
Notwithstanding the comments from Obama’s top aides, officials told reporters and Congressional aides last week that the promise not to prosecute did not extend to Justice Department lawyers or to officials outside the intelligence agencies.
However, lawyers said it was unlikely that Bush administration lawyers would be criminally investigated and virtually impossible they would be prosecuted for their legal opinions, even though many scholars consider the reasoning in the memos to be deeply flawed.
“The worst thing would be to set a precedent for criminal prosecution of a prior administration because history has made them out to look stupid,” said Lanny Davis, an attorney who worked in the Clinton White House. Davis called the interrogations “torture” and said the lawyers who found them to be legally sound could be “subject to public opprobrium” or disbarred.
Republicans warned Tuesday that either a commission or criminal investigation could hurt national security by prompting CIA officials to be overly cautious.
“I do object to a truth commission, or retrospective attempts to prosecute people who were just doing their job," Sen. John Cornyn (R-Tex.) said. "It may lead to excessive timidity and risk avoidance."
Rep. Lamar Smith (R-Tex.) objected to Obama’s statements and suggested a wide-ranging investigation would have to include a look at what Congress was told about the aggressive tactics and what, if anything, members did about it.
"Will Democrats also investigate the Members of Congress who were briefed on interrogation tactics in 2002 and raised no objection? If the lawyers are threatened with an investigation, why not the politicians who approved their actions?” Smith asked.
Still, an intelligence committee member who got some briefings, Sen. Dianne Feinstein (D-Calif.) said she welcomed Obama’s comments about an investigation. “I don’t look at it as a reversal. I look at it as a step forward,” she said.
White House aides appear to have concluded that one consolidated blue-ribbon investigation, as distracting as it might be, would be preferable to various House and Senate committees proceeding piecemeal to investigate various issues.
That seemed to be the default alternative yesterday even in the wake of Obama’s expression of support for a commission. Conyers, who is still pushing for such a panel, said the Judiciary Committee will conduct its own investigation into the Justice Department interrogation memos and hold hearingson the subject soon.
Whatever happens on prosecutions or a commission, Obama used unusually blunt language Tuesday to make clear that he views the interrogation tactics, which he has formally abandoned, as a grave mistake.
The “memos that were released reflected, in my view, us losing our moral bearings,” the president said.
Martin Kady II contributed to this report.