Did Obama just reverse himself on prosecution of ex-Administration officials?

[XT]

Basically there in the thread title. Was watching ABC and they had one of their news break thingies and said something to the effect that Obama just reversed the position of the last couple of days wrt prosecution of ex-Administration officials concerning torture.

My question is…is that correct? If so, what do you think about that? What are the likely ramifications? How high up could/would this go in the old administration if correct?

-XT

[descamisado]

A link to . . . . something . . . . would be nice.

[MovieMogul]

I think this is a good breakdown of the distinctions here:

One of the central principles of our justice system is supposed to be that specific decisions about Justice Department prosecutions are to be made independent of all political considerations, including the White House’s political agenda or the President’s political interests. Numerous recent scandals have arisen from this principle – the October, 1973 refusal of Nixon Attorney General Eliot Richardson to follow Nixon’s orders to fire Watergate Special Prosecutor Archibald Cox and Nixon’s subsequent demand that Richardson resign as part of Nixon’s Saturday Night Massacre; the repeated demands from the Right that Attorney General Janet Reno act “independently” by appointing Independent Prosecutors to criminally investigate every last one of the Clinton White House’s alleged improprieties; and the numerous instances of Alberto Gonzales’ Justice Department collaborating with the White House and using political – rather than legal – considerations to make decisions about prosecutions.

This is the principle that has made it so strange, and increasingly disturbing, that the power to decide whether Bush officials should be prosecuted was being vested in Barack Obama. Whether to commence criminal investigations and prosecutions of specific acts of alleged criminality is not Obama’s decision to make. It is the duty of the Justice Department, and ultimately the Attorney General, to make those decisions based strictly on legal considerations, and independent of the political interests of the White House. Whether or not Obama favors prosecutions is really irrelevant, and one could almost reasonably argue that the increasingly aggressive pressure he and his aides, such as Rahm Emanuel, have been exerting to impede prosecutions was becoming improper. Given the magnitude of these questions, I think it’s unreasonable to argue that the President should refrain entirely from opining on such questions, but the line of propriety can easily be crossed and – especially with the recent comments of Emanuel and Robert Gibbs all but decreeing that there would be no prosecutions – that line was starting to be broached.

DOJ lawyers tend to safeguard their apolitical independence rather vigilantly – at least the honest ones do – and there has to be some growing resistance inside the DOJ to the idea that decisions about whether to prosecute will be dictated to them by political officials in the White House, including the President. Clearly, Obama today – in the face of rapidly rising pressure to investigate – seems to have re-considered that approach. Obama just plainly contradicted what Rahm Emanuel said over the weekend and what Robert Gibbs said yesterday when he announced this afternoon – appropriately so – that the decision of whether to prosecute Bush lawyers who authorized torture (“those who formulated those legal decisions”) was one for the Attorney General, and not Obama, to make, and that Obama did not want to “prejudge” that question. Futher recognizing the growing inevitability of some type of investigation (there are many more inflammatory torture disclosures that will come), Obama expressed his preference for some type of “independent” investigation over a purely Congressional hearing.

One can only speculate about whether this is all just a means of shielding Obama from the fall-out of whatever decision is ultimately made, but regardless of what motivates it, Obama said the right thing here. It is simply not his decision to make, and he should not be trying to pressure the DOJ one way or the other.

Obama’s statement today is being somewhat melodramatically presented by establishment journalists as his “leaving the door open” to prosecutions, but the real point is that this was never his door to shut in the first place. Presidents have the authority to set general policy for the Justice Department (which would include general investigative and prosecutorial priorities), but not to dictate individual decisions about prosecutions. In fact, for a White House to try to influence those decisions is a form of corruption. This principle was understood by Democrats so clearly when Bush was President that Senate Democrats were actually demanding legislation to limit the ability of the White House and DOJ to communicate with one another about pending investigations.

[XT]

@5-4-Fighting

 A link to . . . . something . . . . would be nice. 

I said…I saw…it on the news…so that’s why…I ASKED…the question…

I also…don’t have…access…to a computer…atm…so if you want…a link…feel free to do a search…

I’m perfectly willing to find out that the ABC report I just watched is full of shit. That’s why I’m asking…and figured it could devolve into a debate, thus my question here in GD.

-XT

[The_Second_Stone]

Obama closed the door, then reopened the door. ArchiveGuy is correct on tradition of DOJ as independent, but this is not law, just tradition. As outrageous as what Nixon did with the Saturday Night Massacre (paled in comparison to Bush’s round the clock torturing) it was not in my opinion illegal, but rather corrupt in trying to end prosecutions against friends.

The charges of torture and death against the DOJ attorneys and various members of government are among the most serious abuses of power possible (along with starting a war based on lies) and are also crimes. If there is probable cause, investigations should commence.

[descamisado]

Excuse me. Usually the OP provides the salient information for a debate in GD – and I had no way of knowing you were without a means to do that when you posted.

[Polycarp]

Not having the factual data behind this (as opposed to the analytical stuff that Archive Guy provided), I’m going to hazard a guess that neither Obama nor his DOJ people actually reversed themselves on this. There was a very careful and nuanced statement made, that people who acted in good faith in accordance with legal memoes prepared by DOJ staff would not be prosecuted. In short, if you ask “Are these orders legal?” and the chief law enforcement officer of the country has his staff tell you specifically that they are if carried out thus and so, then you can’t be prosecuted for following a legal order.

Tht does not mean that someone using the memoes as a pretext, going beyond or in directions not contemplated in the memoes, etc., cannot be prosecuted, nor that those who prepard the memoes and/or directed that the interrogations take place, cannot be prosecuted.

But the news reports conflated the first announcement into a statement that “We’re not going to prosecute – period” and anything contradicting that, they will report as a reversal. IMO, it’s nothing of the sort.

I could be wrong in this analysis – it depends on the actual facts of what was said. But I’ve seen similar cases where the press erroneously generalizes and then portrays an action as a flip-flop when it fits exactly what was said the first time, in completely different circumstances. Ao I am hazarding the guess it may well be true here as well.

[The_Second_Stone]

@Polycarp

then you can’t be prosecuted for following a legal order.

Except that you can be prosecuted for following an order, even a “legal” order. The Nuremberg trials proved this. The movieJudgment At Nuremberg was a thoughtful movie that popularized the point nicely.

[tjcoop3]

Look Folks-Politicians lie period. Those rare ones who do not are anomalies.

Obama being a politician is likely a lier as well. So, to him reversing
is merely reevaluating the facts(looking at polls).

It is not about what is right or wrong, it is about how do I as a
politician get as much support for the stuff I want.

People pleasers will say what keeps them popular.

[dropzone]

Obama is a lawyer. A really good lawyer. He’s not going to say anything absolute that is not absolutely absolute. And no politician should say anything absolute, either. It ties his hands. You wonder why so many politicians started out as lawyers? This is why. And it’s not a bad thing. Dubya was not a lawyer and said and did things that no lawyer would say or do, and had to stick to them because he couldn’t find the trapdoor that a god lawyer would’ve left.

I come from a family full of good lawyers. I know there should always be a trapdoor, even if I haven’t found it yet.
ETA: And as an engineer raised with lawyers, I won’t go out on limb about squat. Will the Sun rise tomorrow? Though past performance usually predicts future performance, there is still a chance it won’t. And define “rise.”

[Henrichek]

Do you mean this?

BBC NEWS | Americas | CIA memo prosecutions 'possible'

[tomndebb]

My memory of the events has been that Obama initially said that he would not seek trials of the lawyers or the CIA operatives.

Later, when asked the same point, again, he said that it was up to the Attorney General to make any determinations about future trials and that he (Obama) did not want to prejudice any actions by making premature statements. He also indicated that he did not feel that this was a good time for Congress to be opening up a bunch of hearings into the issues.

He has made no claim that Holder is not investigating actions of the previous administration. He has simply said that he is not calling for prosecutions, since that is Holder’s call to make.

The only “reversal” is in the minds of the news guys who need stories.

[Whack-a-Mole]

@xtisme

I also…don’t have…access…to a computer…atm

Err…how did you post this then?

Morse code via dixie cups and some string?

[The_Second_Stone]

@dropzone

I come from a family full of good lawyers. I know there should always be a trapdoor, even if I haven’t found it yet.

And when they are dead and gone you will be able bury them 8 feet down rather than 6 feet. Because deep down lawyers are really good.

[Declan]

@Whack-a-Mole

Err…how did you post this then?

Morse code via dixie cups and some string?

Probably from an iPhone. Until software 3.0 comes along there is no cut and paste, so your limited to what you can do on the sdmb.

Declan

[Marley23]

Obama appeared to be shading away from prosecutions earlier and I agree the door is more open here. But Archive Guy’s point is well taken - it’s not his call alone and shouldn’t be.

[Cliffy]

@tomndebb

The only “reversal” is in the minds of the news guys who need stories.

I don’t entirely agree. I think Greenwald (from the link ArchiveGuy posted has it right. ISTM that the president made a nuanced statement that was meant to convey that his Administration wouldn’t be prosecuting people. Of course, because he’s a careful speaker, Obama didn’t completely rule it out, but I don’t think this was meant as just theatre. Because it’s bad theatre – this reversal (plainly what it is, and most likely driven by complaints at Justice that the all voted for this guy because he said he would stop such shenannigans) makes Obama look wishy-washy.

–Cliffy

[Gyrate]

@Polycarp

Not having the factual data behind this (as opposed to the analytical stuff that Archive Guy provided), I’m going to hazard a guess that neither Obama nor his DOJ people actually reversed themselves on this. There was a very careful and nuanced statement made, that people who acted in good faith in accordance with legal memoes prepared by DOJ staff would not be prosecuted. In short, if you ask “Are these orders legal?” and the chief law enforcement officer of the country has his staff tell you specifically that they are if carried out thus and so, then you can’t be prosecuted for following a legal order.

Tht does not mean that someone using the memoes as a pretext, going beyond or in directions not contemplated in the memoes, etc., cannot be prosecuted, nor that those who prepard the memoes and/or directed that the interrogations take place, cannot be prosecuted.

But the news reports conflated the first announcement into a statement that “We’re not going to prosecute – period” and anything contradicting that, they will report as a reversal. IMO, it’s nothing of the sort.

I could be wrong in this analysis – it depends on the actual facts of what was said. But I’ve seen similar cases where the press erroneously generalizes and then portrays an action as a flip-flop when it fits exactly what was said the first time, in completely different circumstances. Ao I am hazarding the guess it may well be true here as well.

That’s my reading of it as well - Obama’s statement left room to prosecute those who went below and beyond the parameters set out by the Bush administration’s lawyers (which, for example, waterboarding one person 183 times in a month did). I doubt we’ll see a comprehensive Nuremberg-esque investigation; rather, enough of the worst perpetrators will get punished to satisfy honor. Sadly, I don’t see Cheney being among these (alas).

[Acsenray]

@Whack-a-Mole

Err…how did you post this then?

Morse code via dixie cups and some string?

He signed off with “atm.” He’s obviously posting from an automated teller machine.

[Merijeek]

I kind of thought that Obama’s initial position was that “CIA guys following orders wouldn’t be prosecuted”. People logically extended from that that the administration wouldn’t be leaning on the bottom-level guys to get them to roll over on the upper-level ones.

Maybe they think they’ve found a way around it? Maybe they’ve decided that people want heads to roll for the pure evil committed by their government?

-Joe