President Obama and the Democrats who control Congress have a problem: whether to keep alive the issue of torture or to let bygones be bygones. Either way, the harsh interrogation tactics that were used in the Bush administration remain among the most emotional issues facing the government—and the nation.
At the heart of the debate are the brutal techniques used to obtain information from suspected terrorists after the attacks of 9/11. One of those methods, waterboarding, has been labeled torture by many critics, including President Obama, who has banned the practice and said that it doesn't necessarily produce better intelligence.
Some of Obama's supporters are urging the Justice Department to prosecute policymakers who wrote legal opinions authorizing the controversial methods. But word has leaked that a preliminary inquiry at Justice concludes that, while the authors of those memos showed poor judgment, they should not be criminally prosecuted because giving bad advice is not illegal.
Yet the "torture issue" is gaining momentum almost by the day. Former Vice President Dick Cheney intensified the debate when he said the harsh interrogations were "overwhelmingly" effective in extracting important information about terrorist activities. Cheney told CBS's Face the Nation that the Obama administration has made the United States less safe by banning these techniques and reversing other national security policies from George W. Bush's tenure. However, White House Press Secretary Robert Gibbs says that, while President Obama wants to "look forward" and not prosecute "those who followed the advice that was given," higher-ups could be vulnerable. It's up to Attorney General Eric Holder to decide who, if anyone, broke the law, Gibbs says. The Justice Department's investigatory panel is expected to recommend, at minimum, that state bar associations consider disciplinary action, including reprimands or disbarment of some of the lawyers involved in writing the legal opinions, especially Jay Bybee, Steven Bradbury, and John Yoo, who were part of the department's Office of Legal Counsel under Bush.
Other options, such as congressional hearings to determine if there was wrongdoing, could prove just as divisive. Sixty-two percent of Americans oppose such hearings, according to a poll in late April by CBS News and the New York Times—including 89 percent of Republicans, 60 percent of independents, and 51 percent of Democrats. On the issue of torture itself, the country is split. Forty-nine percent of Americans support Obama's position that the United States should not use torture, but 48 percent say there are cases in which the United States "should consider torture against terrorism suspects," according to a recent ABC News/Washington Post poll.
Many Democrats favor the appointment of a special commission to look into the matter. Complicating the issue, the first Senate hearing on the torture question degenerated into partisan sniping this week. And the issue is leading to unpredictable outcomes, such as President Obama's decision to reverse himself and attempt to block the court-ordered release of photos showing brutal techniques used against detainees. After discussions with his military advisers, Obama said he felt the photos would inflame anti-American passions and could result in attacks on U.S. troops in Afghanistan and Iraq.
All this is too much for many Republicans. Efforts to punish those who authorized or carried out the controversial methods "would be an outrage," says a former adviser to President George H. W. Bush. He predicts that if Democrats push the issue, GOP hard-liners will then make it their mission to find ways to embarrass and harass Obama for the rest of his presidency and beyond.
Former Secretary of State James Baker, who served George H. W. Bush, calls the threat to investigate the writers of the legal opinions a "terrible mistake" that could undermine Obama's agenda. During a speech April 27, Baker said, "The one thing that we need to stay away from at all costs is criminalizing our policy differences." He argued that a criminal investigation "would suck a lot of the oxygen out of the air on some very important things that they are going to try and get done."