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Obama Advisers: No Charges Likely Versus Interrogators

Lara Jakes Jordan

President-elect Barack Obama pauses during his meeting with Sen. John McCain, R-Ariz., not shown, Monday, Nov. 17, 2008, at his transition office in downtown Chicago. (AP Photo/Pablo Martinez Monsivais)

WASHINGTON - Barack Obama's incoming administration is unlikely
to bring criminal charges against government officials who authorized
or engaged in harsh interrogations of suspected terrorists during the
George W. Bush presidency. Obama, who has criticized the use of
torture, is being urged by some constitutional scholars and human
rights groups to investigate possible war crimes by the Bush

Two Obama advisers said there's little - if any -
chance that the incoming president's Justice Department will go after
anyone involved in authorizing or carrying out interrogations that
provoked worldwide outrage.

The advisers spoke on condition of
anonymity because the plans are still tentative. A spokesman for
Obama's transition team did not respond to requests for comment Monday.

the question of whether to prosecute may never become an issue if Bush
issues pre-emptive pardons to protect those involved.

Obama has
committed to reviewing interrogations on al-Qaida and other terror
suspects. After he takes office in January, Obama is expected to create
a panel modeled after the 9/11 Commission to study interrogations,
including those using waterboarding and other tactics that critics call
torture. The panel's findings would be used to ensure that future
interrogations are undisputedly legal.

"I have said repeatedly
that America doesn't torture, and I'm going to make sure that we don't
torture," Obama said Sunday on CBS' "60 Minutes." "Those are part and
parcel of an effort to regain America's moral stature in the world."

Obama's most ardent supporters are split on whether he should prosecute Bush officials.

this weekend during a Vermont Public Radio interview if Bush
administration officials would face war crimes, Senate Judiciary
Chairman Patrick Leahy flatly said, "In the United States, no."

"These things are not going to happen," said Leahy, D-Vt.

Litt, a former top Clinton administration Justice Department
prosecutor, said Obama should focus on moving forward with anti-torture
policy instead of looking back.

"Both for policy and political
reasons, it would not be beneficial to spend a lot of time hauling
people up before Congress or before grand juries and going over what
went on," Litt said at a Brookings Institution discussion about Obama's
legal policy. "To as great of an extent we can say, the last eight
years are over, now we can move forward - that would be beneficial both
to the country and the president, politically."


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But Michael
Ratner, a professor at Columbia Law School and president of the Center
for Constitutional Rights, said prosecuting Bush officials is necessary
to set future anti-torture policy.

"The only way to prevent this
from happening again is to make sure that those who were responsible
for the torture program pay the price for it," Ratner said. "I don't
see how we regain our moral stature by allowing those who were
intimately involved in the torture programs to simply walk off the
stage and lead lives where they are not held accountable."

In the
years after the Sept. 11, 2001, terror attacks, the White House
authorized U.S. interrogators to use harsh tactics on captured al-Qaida
and Taliban suspects. Bush officials relied on a 2002 Justice
Department legal memo to assert that its interrogations did not amount
to torture - and therefore did not violate U.S. or international laws.
That memo has since been rescinded.

At least three top al-Qaida
operatives - including 9/11 mastermind Khalid Sheik Mohammed - were
waterboarded in 2002 and 2003 because of intelligence officials' belief
that more attacks were imminent. Waterboarding creates the sensation of
drowning, and has been traced back hundreds of years and is condemned
by nations worldwide.

Bush could take the issue of criminal charges off the table with one stroke of his pardons pen.

Bush will protect his top aides and interrogators with a pre-emptive
pardon - before they are ever charged - has become a hot topic of
discussion in legal and political circles in the administration's
waning days. White House deputy press secretary Tony Fratto declined to
comment on the issue.

Under the Constitution, the president's power to issue pardons is absolute and cannot be overruled.

pardons would be highly controversial, but former White House counsel
Arthur B. Culvahouse Jr. said it would protect those who were following
orders or otherwise trying to protect the nation.

"I know of no
one who acted in reckless disregard of U.S. law or international law,"
said Culvahouse, who served under President Ronald Reagan. "It's just
not good for the intelligence community and the defense community to
have people in the field, under exigent circumstances, being told these
are the rules, to be exposed months and years after the fact to
criminal prosecution."

The Federalist Papers discourage
presidents from pardoning themselves. It took former President Gerald
Ford to clear former President Richard Nixon of wrongdoing in the 1972
Watergate break-in.

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