Obama reluctant to probe Bush policies

By David Johnston and Charlie Savage

updated 7:56 a.m. ET Jan. 12, 2009

WASHINGTON - President-elect Barack Obama signaled in an interview broadcast Sunday that he was unlikely to authorize a broad inquiry into Bush administration programs like domestic eavesdropping or the treatment of terrorism suspects.

But Mr. Obama also said prosecutions would proceed if the Justice Department found evidence that laws had been broken.

As a candidate, Mr. Obama broadly condemned some counterterrorism tactics of the Bush administration and its claim that the measures were justified under executive powers. But his administration will face competing demands: pressure from liberals who want wide-ranging criminal investigations, and the need to establish trust among the country’s intelligence agencies. At the Central Intelligence Agency, in particular, many officers flatly oppose any further review and may protest the prospect of a broad inquiry into their past conduct.

In the clearest indication so far of his thinking on the issue, Mr. Obama said on the ABC News program “This Week With George Stephanopoulos” that there should be prosecutions if “somebody has blatantly broken the law” but that his legal team was still evaluating interrogation and detention issues and would examine “past practices.”

Mr. Obama added that he also had “a belief that we need to look forward as opposed to looking backwards.”

“And part of my job,” he continued, “is to make sure that, for example, at the C.I.A., you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got spend their all their time looking over their shoulders.”

Waterboarding and wiretapping
The Bush administration has authorized interrogation tactics like waterboarding that critics say skirted federal laws and international treaties, and domestic wiretapping without warrants. But the details of those programs have never been made public, and administration officials have said their actions were legal under a president’s wartime powers.

There was no immediate reaction from Capitol Hill, where there has been a growing sense that Mr. Obama was not inclined to pursue these matters. In resisting pressure for a wider inquiry, he risks the ire of influential Democratic lawmakers on Congressional judiciary and intelligence committees and core constituencies who hoped his election would cast a spotlight on President Bush’s antiterror efforts.

The issue will also be an important early test of his relationship with conservatives in Congress and the country’s intelligence agencies; both groups oppose any further review.

On other terrorism issues, Mr. Obama suggested in the interview that his approach might be more measured. He said the closing of the detention center at Guantánamo Bay, Cuba, which once seemed to be an early top objective, was not likely to happen during the first 100 days of his administration.

“It is more difficult than I think a lot of people realize,” Mr. Obama said, “and we are going to get it done. But part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom who may be very dangerous, who have not been put on trial or have not gone through some adjudication.”

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Mr. Obama has in the past condemned waterboarding, and he was explicit in the interview that he regarded the use of the technique, in which a subject is made to believe that he is drowning, as torture, prohibited by statute. And the president-elect said he disagreed with Vice President Dick Cheney, who has defended the practice.

“Vice President Cheney, I think, continues to defend what he calls extraordinary measures or procedures when it comes to interrogations,” Mr. Obama said, “and from my view, waterboarding is torture.”

Mr. Obama’s choice for attorney general, Eric H. Holder Jr., is widely expected to be asked about his views on these issues at his confirmation hearing this week. Associates say Mr. Holder is open to prosecutions based on specific accusations but is less eager to use the criminal law to commence wide-ranging inquiries. Before being chosen for the Obama cabinet, he said there should be “a reckoning” over Bush administration policies.

'Doesn't want to look vengeful'
Lawyers who represented Bush administration officials over the years expressed little surprise that Mr. Obama’s legal and national security team had lost whatever appetite it might have had for delving into alleged misdeeds of the Bush years.

“A new president doesn’t want to look vengeful,” said a former Bush White House lawyer, Bradford A. Berenson, who was a Harvard law classmate of Mr. Obama and has represented administration figures as a private lawyer, “and the last thing a new administration wants to do is spend its time and energy rehashing the perceived sins of the old one.

“No matter how much the Obama administration’s most extreme supporters may be screaming for blood, the president himself doesn’t seem to share that bloodlust.”

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Moreover, any effort to conduct a wider re-examination would almost certainly provoke a backlash at the country’s intelligence agencies.

Mark Lowenthal, who was the assistant director for analysis and production at the C.I.A. from 2002 to 2005, said if agents were criminally investigated for doing something that top Bush administration officials asked them to do and that they were assured was legal, intelligence officers would be less willing to take risks to protect the country.

“There are just huge costs to the day-to-day operation of intelligence,” Mr. Lowenthal, now the president of the Intelligence and Security Academy, said of a potential investigation. He added that he saw no benefit to such an effort because, he said, the public was not clamoring for it.

But it may be difficult for Mr. Obama to resist the pressure for a fuller public accounting, and lawmakers appear ready to proceed even without his support.

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