Yesterday, as he released four Bush-era legal memos authorizing the torture of terrorist suspects, President Obama made it clear he would not support any prosecutions of low-level interrogators who actually carried out Bush’s policies. “[I]t is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”
Obama also added, “This is a time for reflection, not retribution,” and said “nothing will be gained by spending our time and energy laying blame for the past.” Some progressive commentators were outraged; Keith Olbermann pleaded, “Prosecute, Mr. President.” CBS’s Andrew Cohen interpreted this to mean Obama would not support any prosecutions for torture:
One by one, the hammer blows fell upon civil libertarians and millions of other Americans who believe that the people who legally sanctioned and then implemented torturous “enhanced interrogation tactics” should have had to defend their conduct in our courts of law. One by one, those enthusiastic supporters of the Obama administration’s legal values and policies realized that they had just lost a battle (been wiped out, in fact) that they had every reason to believe they would win. There will be no torture trials. Period.
However, Obama’s statement was carefully worded to include only “those who carried out their duties relying in good faith upon legal advice” — not the Bush officials who actually gave out that advice. ACLU lead counsel Jameel Jaffer told Glenn Greenwald that Obama did not shut the door to all prosecutions:
I think it’s a mistake to read the grant of immunity too broadly. I don’t think that President Obama’s statement should be taken as a sign that there’s no chance that the architects of torture program will be prosecuted. And even with respect to the interrogators, it’s only the interrogators who relied “in good faith” on legal advice who are protected.
Indeed, Marc Ambinder reported yesterday that “senior administration officials have made it clear” to him that the immunity would not apply to those officials who “who did NOT act in good faith, or who did not act according to the guidelines spelled out by the OLC.” Obama himself seemed to indicate that some sort of investigations have already begun, telling CNN en Espanol, “I think that we are moving a process forward here in the United States to understand what happened.”
Greenwald notes that the door for investigations and prosecutions is still open, but it will take enormous pressure from the American public to push Obama through. “[T]he burden is on us to demand that something be done,” he writes.