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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 administration.
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 spokesperson for Obama's transition team did not respond to requests for comment today.
Additionally, 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 Qaeda 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.
Asked 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.
Robert 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."
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 Qaeda 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 Qaeda 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.
Whether 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.
Pre-emptive 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 defence 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.
