Legal barriers to prosecuting Bush-era officials over alleged torture would be substantial, legal experts said Wednesday. But Democrats were seizing on the issue to score political points anyway, while some Republicans warned against opening a Pandora’s box of recrimination, and a new congressional report suggested widespread involvement in the matter.
A day after President Barack Obama refused to rule out prosecutions of Bush officials involved in approval of certain interrogation techniques, the Democratic National Committee sought to use the debate to link the current Republican Party with unpopular Bush-era leaders, particularly former Vice President Dick Cheney. He has repeatedly criticized the Obama administration over national-security issues.
He did so again last week, when the Obama administration released redacted versions of several memos related to the Bush-era interrogation policy.
If Republican leaders in Congress “are content to allow the architects of the disastrous policies and poisonous politics of the past to remain the face of the new Republican Party, it’s fine with us,” the Democratic National Committee said in a news release.
Meanwhile, in a new report, congressional investigators concluded that the interrogation policies involved key legal officials across the administration, not just a handful of lawyers currently being investigated by the Justice Department. Top administration officials including then-Vice President Cheney and then-National Security Adviser Condoleezza Rice were “at the center of the discussions,” Sen. Jay Rockefeller (D., W.Va.) said in a statement. That suggests that any criminal probe might quickly grow very large in scale.
Several Republicans also noted that top lawmakers were briefed on the tactics early on. In deciding which officials to investigate, “where do you draw the line?” one ex-Bush official said.
Former Bush adviser Karl Rove said the Obama administration risks looking like a “Third World regime where the incoming junta of colonels” conducts “show trials of their predecessors over policy differences.”
Experts said the path to prosecution is littered with potential legal problems. There is international precedent for prosecuting officials accused of enabling war crimes. But the two main statutes that could form the basis of a U.S. prosecution have shortcomings for prosecutors.
The antitorture statute sets a relatively high standard for prosecutors to meet, particularly when it comes to proving intent. Top officials could argue they relied on the legal memos that authorized the tactics and outlined how specific techniques in question wouldn’t cause severe pain and suffering.