Former President Bill Clinton thinks President Barack Obama was right to release the controversial torture memos and also right to leave potential prosecution issues to his Attorney General, Eric H. Holder, Jr., revealed Lanny Davis in a Washington Times Op-ed.
Davis, a Washington lawyer and former special counsel to President Clinton, described a phone conversation during which he and Clinton discussed Obama’s decision to release the Justice Department’s memos and whether to prosecute the interrogators, the lawyers or the policymakers who approved techniques such as waterboarding.
The issue of accountability and even criminal liability was given new life when the released memos revealed, among other things, unseemly details that countered claims by the Bush administration that “enhanced interrogation” techniques were used only sparingly.
According to the documents, 9/11 mastermind Khalid Shaikh Mohammed was waterboarded more than 180 times in 30 days, reported U.S. News and World Report.
Davis, who met Clinton in the fall 1970, a few months graduating from Yale Law School -- also Clinton’s alma mater -- wrote that his former boss appreciated how Obama made these difficult decisions.
Wrote Davis: Clinton revealed that he was all but convinced that Obama started his process with the assumption that the interrogators were patriots doing their distasteful jobs because they were informed and convinced it was legal and necessary.
“This isn’t Nuremberg, he [Clinton] said -- it isn’t about orders to kill people, and people who make that comparison to Nazi Germany and the Holocaust are wrong. This is also a completely different context -- post-9/11 -- he continued, but that doesn’t justify torture,” Davis recounted in his piece.
Tossed in the mix was that Defense Secretary Robert M. Gates was of the mind that the documents were going to see the light of day regardless, so DOJ was not losing anything by revealing them.
Clinton revealed to Davis that as a former chief executive he well understood Obama’s reluctance to open the can of worms of holding officials accountable – “despite intense criticism from many liberal Democrats.”
In the final analysis, wrote Davis, Clinton said he admired Obama’s ability see the nuances -- to try to think through all ramifications of all possible answers: Criminal prosecution to uphold the law against torture strictly would set a good precedent that administrations will be held accountable for lawbreaking, no matter what. On the other hand, it might set a bad precedent, a slippery slope from a valid criminal prosecution morphing into misuse of the criminal justice system against a prior administration for partisan purposes.
Obama, left between the proverbial rock and a hard place, had to make a decision.
Ultimately, the Obama decision process looked a little ragged to the uninitiated – one day he seemed to rule out any prosecutions whatsoever, only to about-face and leave the prosecutorial discretion in the hands of his Attorney General, a comfortable fit considering that’s what the man gets paid for.
Clinton reminded Davis of an old law school adage preached by one of their mutual professors: “Bad facts make bad law.” For sure, at the other end of this hotwired equation there would be an imperfect outcome, regardless of the sagacity of the man behind the eight ball – the President.
Clinton’s conclusion was that “Obama probably ended in the best place by placing the final decision in the good hands of Mr. Holder, who has already proved that he understands that ‘Justice’ is the name of the department that he heads,” wrote Davis.
“Only a former president can truly appreciate how tough a decision Mr. Obama faced in balancing these cross-pressures. And clearly Mr. Clinton is very impressed with the job Mr. Obama has done and with the personal and intellectual capabilities he has shown in his first 100 days,” Davis concluded.
Regardless of Clinton’s favorable marks, Republicans have condemned the release as dangerous and irresponsible -- a position not strongly disputed by Obama’s own CIA Director Leon Panetta, who opposed the release.
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