Feingold To Obama: Hold Off On Prosecution Decision

05/23/2009 05:12 am ET | Updated May 25, 2011

Senator Russ Feingold sent a letter to President Obama Wednesday praising the White House's release of Justice department memos that provided legal justifications for torture during the Bush Administration. The Wisconsin Democrat wrote that he was glad Obama had left the door open to prosecution of former administration officials and that he hopes Obama will wait before he makes any blanket decisions about prosecution.

"I urge your administration to wait to consider the findings of the Senate Select Committee on Intelligence's review of the program, and the Department of Justice's investigation, before making any decisions related to prosecutions of any persons involved in these interrogations," Feingold wrote in his letter (PDF).

Sens. John McCain (R-Ariz.), Joe Lieberman (ID-Conn.), and Lindsey Graham (R-S.C.) also penned a letter to the president Wednesday, asking that Obama shut the door on prosecution. The senators invoked the president's previous insistence that the administration should look "forward" instead of "backward" and not consider legal action against Bush administration lawyers.

"We do not believe...that legal analysis should be criminalized, as proposals to prosecute government lawyers suggest," the senators wrote.

A report released Tuesday evening by the Senate Armed Services committee found that the Bush Administration itself looked backward to scrounge up legal justification for the torturous policies it had already implemented.

Rep. John Conyers (D-Mich.), chairman of the House judiciary committee, on Tuesday announced that he would give a hearing to the torture memos.


We write with concern about proposals to prosecute previous administration officials for their legal analysis related to the CIA interrogation program. Pursuing such prosecutions would, we believe, have serious negative effects on the candor with which officials in any administration provide their best advice, and would take our country in a backward-looking direction at a time when our detainee-related challenges demand that we look forward.

We agree with your position that CIA interrogators, carrying out operations that had been deemed lawful by the Attorney General, should not be the subject of prosecution. Indeed, we addressed such a possibility in the 2005 Detainee Treatment Act, which holds that "good faith reliance on advice of counsel should be an important factor, among others," when considering whether CIA interrogators had good reason to believe that their activities were legal.

We disagree, however, with Administration statements suggesting that the lawyers who provided such counsel may now be open to prosecution. Some of the legal analysis included in the OLC memos released last week was, we believe, deeply flawed. We have also strongly opposed the overly coercive interrogation techniques, including waterboarding, that these memos deemed legal. We do not believe, however, that legal analysis should be criminalized, as proposals to prosecute government lawyers suggest. Moving in such a direction would have a deeply chilling effect on the ability of lawyers in any administration to provide their client - the U.S. Government - with their best legal advice. Providing poor legal advice is always undesirable, and the Department of Justice is currently conducting an internal ethics review of the OLC memos, but that is a quite a different matter from making legal advice with which we may disagree into a crime.

Given the great challenges that face our country in dealing with detainees currently held at Guantanamo Bay, Bagram Airfield, and elsewhere, along with detainees that will undoubtedly fall into U.S. custody as the result of future operations, we have every interest in looking forward to solutions, not backward to recriminations. That is why we do not support the idea of a commission that would focus on the mistakes of the past.

As you have made clear, we are a nation at war. Appreciating that reality, we look forward to working with you on the panoply of detainee issues, ranging from interrogation standards to the disposition of detainee cases, which will engage our country going forward. In the interest of national security, it is the future, rather than the past, on which we believe America's gaze must be fixed.

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