Obama Faces a New Push to Look Back

http://www.nytimes.com/2009/07/13/us/politics/13intel.html

July 13, 2009
News Analysis
Obama Faces a New Push to Look Back
By SCOTT SHANE

President Obama is facing new pressure to reverse himself and to ramp up investigations into the Bush-era security programs, despite the political risks.

Leading Democrats on Sunday demanded investigations of how a highly classified counterterrorism program was kept secret from the Congressional leadership on the orders of Vice President Dick Cheney.

Senator Dianne Feinstein, Democrat of California, who is the chairwoman of the Senate Intelligence Committee, on Fox News Sunday called it a “big problem.” Senator Richard J. Durbin, Democrat of Illinois, on “This Week” on ABC, agreed that the secrecy “could be illegal” and demanded an inquiry.

Mr. Obama said this weekend that he had asked his staff members to review the mass killing of prisoners in Afghanistan by local forces allied with the United States as it toppled the Taliban regime there. The New York Times reported Saturday that the Bush administration had blocked investigations of the matter.

Attorney General Eric H. Holder Jr. is also close to assigning a prosecutor to look into whether prisoners in the campaign against terrorism were tortured, officials disclosed on Saturday.

And after a report from five inspectors general about the National Security Agency’s domestic eavesdropping said on Friday that there had been a number of undisclosed surveillance programs during the Bush years, Democrats sought more information.

That makes four fronts on which the intelligence apparatus is under siege. It is just the kind of distraction from Mr. Obama’s domestic priorities — repairing the economy, revamping the health care system, and addressing the long-term problems of energy and climate — that the White House wanted to avoid.

A series of investigations could exacerbate partisan divisions in Congress, just as the Obama administration is trying to push through the president’s ambitious domestic plans and needs all the support it can muster.

“He wants to dominate the discussion, and he wants the discussion to be about his domestic agenda — health care, energy and education,” said Martha Joynt Kumar, a professor of political science at Towson University who studies the presidency.

The Bush national security controversies “are certainly a diversion from what he wants to do,” Professor Kumar said. “He wants to talk about the present and not the past.”

Professor Kumar said a president’s signature accomplishments often come in his first year in office, a pattern that Mr. Obama and his aides are keenly aware of. In addition, investigations at this time could open Mr. Obama up to accusations from Republicans that he is undercutting national security.

Senator John McCain, Republican of Arizona, said on “Meet the Press” on NBC that despite his dismay at the Central Intelligence Agency’s past interrogation methods, including waterboarding, he opposed a criminal inquiry into torture, which he said would “harm our image throughout the world.”

“I agree with the president of the United States, it’s time to move forward and not go back,” Mr. McCain said.

But in some cases, it may be hard to avoid looking back. On the question of the killings in Afghanistan, Mr. Obama said in an interview on CNN that he had just learned of “the indications that this had not been properly investigated” and had directed aides to “collect the facts” on the killing of hundreds or thousands of Taliban prisoners.

“If it appears that our conduct in some way supported violations of the laws of war, then I think that, you know, we have to know about that,” the president said.

Mr. Obama is also likely to face increasing pressure from some of his strongest supporters that Bush administration officials be held accountable for approving what Mr. Obama himself has called torture. The drumbeat of new revelations from the years after the attacks of Sept. 11, 2001, appears unlikely to let up.

By summer’s end, the Justice Department’s ethics office is expected to release a report on the former department officials who wrote legal opinions justifying brutal interrogations. The C.I.A. has said that at the end of August it will release part of the 2004 agency inspector general’s report on interrogation that questioned the legality and effectiveness of the program.

And an 18-month-old criminal investigation of the C.I.A.’s destruction of videotapes of waterboarding and other brutal treatment during interrogation is still under way, with a number of former C.I.A. officials called to testify before a grand jury and at least the possibility of indictments.

The special prosecutor in charge of that investigation, John H. Durham, has been mentioned as a possible choice for Mr. Holder if he decides to name someone to lead a torture investigation.

Mr. Obama has publicly resisted calls for a criminal torture investigation, as well as Congressional proposals for a broader national commission to review interrogation and eavesdropping. But Justice Department officials confirmed a report in Newsweek on Saturday that Mr. Holder in recent weeks has been leaning toward opening an interrogation inquiry.

One person familiar with the attorney general’s thinking said on Sunday that investigating the possible crimes of the previous administration “is something he was reluctant to do.”

Mr. Holder, however, “saw things that were disturbing shortly after taking office” and began to think more seriously about a torture investigation recently after studying the 2004 C.I.A. inspector general’s report, which describes how waterboarding and other methods sometimes went beyond the legal guidelines the Justice Department had approved, said this person, discussing conversations with Mr. Holder on condition of anonymity.

The attorney general would prefer to keep such an inquiry narrowly focused and assign it to a line prosecutor, if possible, rather than appoint a special prosecutor, the person said. He said Mr. Holder is aware of the inevitable political fallout and the possible dismay of the White House but insists that he will not let those factors influence his decision.

Mr. Obama’s interests are broader than Mr. Holder’s. If inquiries into the actions of the intelligence agencies under Mr. Bush alienate their operatives, that might restrict Mr. Obama’s ability to use the agencies as he prosecutes the campaigns in Afghanistan and Pakistan.

Mr. Obama has been eager not to put himself at odds with the military and intelligence agencies. He visited C.I.A. headquarters early in his presidency and blocked the release of photographs of prisoner abuse, saying they could inflame people in Iraq and Afghanistan and endanger American troops.

A rash of investigations could undercut the good will he has earned, a point his Republican critics were quick to make on Sunday.

“This is high-risk stuff,” Senator John Cornyn, Republican of Texas, said on Fox News Sunday. “Because if we chill the ability or the willingness of our intelligence operatives and others to get information that’s necessary to protect America, there could be disastrous consequences.”

David Johnston and Mark Mazzetti contributed reporting.