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Taking on torture

An investigation into the abuse of suspected terrorists is vital, but it must be conducted with care.

April 27, 2009

Little more than a week ago, President Obama tried to still the controversy about how his administration should respond to the torture of suspected terrorists by the CIA during the Bush administration. He failed, only partly because of his own administration's miscalculations. It's now clear that if the country is to move beyond what the president called a "dark and painful chapter in our history," there must be a credible and comprehensive accounting of what went wrong and a serious study of whether the architects of the Bush policy violated the law. Equally important is the need to move strategically to secure two sometimes conflicting goals: punishment for any official who knowingly broke the law and accountability to the public.

On April 16, Obama released four memos in which Bush administration lawyers made a convoluted case that waterboarding and other abuse of suspected terrorists didn't constitute torture. Simultaneously, he assured the CIA interrogators who committed such atrocities that they wouldn't be prosecuted if they relied on advice from the Justice Department.

Obama's attempt at triangulation failed as he and his aides sent mixed signals about whether the administration would support the prosecution of higher-ups, including the lawyers in the Justice Department's Office of Legal Counsel who provided cover for the CIA's worst excesses. As a result, the president found himself whipsawed between liberal activists in his own party with visions of Dick Cheney in the dock and apologists for the Bush administration, including the former vice president, who tried to change the subject from the illegality of the interrogation techniques to their supposed success in averting another 9/11.

But more than partisan politics doomed Obama's plea for "reflection, not retribution." Six days after he declassified the memos, the Senate Intelligence Committee released a report saying that high-level Bush administration officials -- including national security advisor Condoleezza Rice and Atty. Gen. John Ashcroft -- endorsed abusive techniques even before Justice Department lawyers provided a written legal rationale for them. Meanwhile, the New York Times reported that an uncensored copy of one of the Justice Department opinions said waterboarding was used 183 times against 9/11 mastermind Khalid Shaikh Mohammed and 83 times against Abu Zubaydah, another Al Qaeda figure. The spectacle of Americans engaged in torture became even more appalling in the face of evidence that they did so wantonly.

This cascade of revelations likely will continue as the interrogation program is investigated by the Senate Intelligence Committee and as participants break their silence about its origins. But piecemeal disclosure isn't enough.

Obama should abandon his resistance to the creation of a panel modeled after the 9/11 Commission. Such a panel should investigate not only the genesis of the program but the extent to which members of Congress knew about and acquiesced in it. Its mandate should include the controversial question of whether, as Cheney and others assert, the brutal measures employed by the CIA produced information that couldn't have been extracted using traditional techniques. (An affirmative answer to that question, in our view, still wouldn't justify torture.)

And yet, just as it is important to form such a commission, so is it essential that it not be formed yet. The history of Washington inquiries offers a clear warning in this regard: When Congress investigated the Iran-Contra scandal, it uncovered a welter of broken laws and public deception. But by granting immunity to witnesses, it tainted the subsequent criminal prosecutions of former national security advisor John M. Poindexter and his aide Oliver L. North, allowing their convictions to be overturned. It is hard to ask for patience from Americans galled by the recent revelations of torture, but haste by Congress or the administration could undermine the goal of punishing those who deserve it.

Last week, Obama said that the question of prosecuting non-CIA personnel -- particularly lawyers in the Office of Legal Counsel -- was a matter for Atty. Gen. Eric H. Holder Jr. We agree that the Justice Department should examine whether Bush administration lawyers and officials may have violated the law. (The department's Office of Professional Responsibility already is investigating whether the authors of the memos breached legal ethics.) As for CIA interrogators, Obama's promise that they will be safe from prosecution if they followed legal advice shouldn't protect those who willfully broke the law or engaged in forms of abuse not approved in those infamous memos.

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