Questions Remain Over Interrogation Memos

Correction April 27, 2009

We said, "Apparently [California Rep. Jane Harman's] voice was heard on, I guess it was an unauthorized wiretap." In fact, reports say the wiretap had been approved by a court. We also said Harman was "apparently talking to people at the American Israeli Political Action Group, AIPAC." Published reports actually say she was talking to a suspected Israeli agent, who offered political help if she would intercede on behalf of two indicted AIPAC members suspected of espionage.

Host Scott Simon discusses the political fallout from the release of the Bush administration interrogation memos with NPR News Analyst Juan Williams.

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SCOTT SIMON, host:

We're joined now by NPR news analyst Juan Williams. Good morning, Juan. Nice to be with you.

JUAN WILLIAMS: Good morning, Scott.

SIMON: We spoke this week with Philip Heymann, former deputy attorney general during the Clinton administration, now professor of law at Harvard and at the Kennedy School - about the whole issue of the possibility of prosecuting Department of Justice lawyers, specifically, over policies that permitted or authorized harsh interrogations, which some people have considered torture. And here's what he said:

Professor PHILIP HEYMANN (Law, Harvard University, Kennedy School): I don't think there is any possibility of a prosecution here at all. You know, I think the agents have to be protected by what they get from the Justice Department; I think the Justice Department has to be protected, unless you can prove that they weren't acting in good faith. And I don't think it's a good idea for one administration to prosecute the leaders of its predecessor.

SIMON: But is that a possibility? Is this something that the Obama administration was hoping to avoid having to face now?

WILLIAMS: Well, certainly they were hoping to avoid having to face it, Scott, and, no, I don't think that anyone at the moment sees that as a real possibility at the moment. The question is whether or not you do it in the United States Congress in terms of the intelligence committees. Or you go outside the Congress to what would some people now call a truth commission, an independent panel.

The problem with that kind of panel, however, is lack of structure. Once you get outside the courts, once you get outside Congress, it sort of becomes amorphous. Where does it go? It could be, you know, sort of like quicksilver, sort of spreading everywhere - let's look into this issue, let's address that issue.

So, you know, Pat Leahy, the president of the Senate Judiciary Committee, said he wants something like a truth commission. But if he has a truth commission, then they're going to have to have some legislative powers, subpoena powers and the like. And you would need Republicans and Democrats in the Senate to grant them that. So, that, again, becomes problematic.

SIMON: And what are some of the political factors that President Obama has to weigh?

WILLIAMS: Well, of course, everything in this is highly political at the moment. But the key one for the White House at the moment is that this issue becomes so large that it distracts from his agenda. That instead of focusing on things like health care, immigration reform, education reform, energy, everybody is caught up in the drama of what's going on, what's being said, not being said.

Already, he's going to have to deal later in May, with the release of 40 or more pictures of the treatment of detainees in Iraq and Afghanistan. That's likely, again, to remind everyone about what happened at Abu Ghraib. What about charges that Abu Ghraib was simply an exception to the rule, that it wasn't the way that the Americans were treating detainees.

All of this is going to reach a more explosive stage if you go back into this with any great specificity.

SIMON: And according to reports, and certainly perhaps your own reporting, there was some disagreement in the counsels of the White House over what to release, wasn't there?

WILLIAMS: Certainly was, and I think much of this came to a head last Sunday when Rahm Emanuel was on TV - Rahm Emanuel, the White House chief of staff -and said the president didn't want any going forward on possible inquiries, investigations and the like.

And then the president then came back on Tuesday and said, well, he's open to the possibility of looking at what happened at the Justice Department and the people who wrote these memos and investigations into them. And he was thinking that he was simply saying it's the province of the Justice Department. But the way that it played in public was to say that he's open to these kinds of prosecutions.

SIMON: And the director of the CIA, Leon Panetta, apparently thought it was a bad idea.

WILLIAMS: Panetta thought it was a bad idea. Of course, Panetta, a former congressman, knows well of constituencies. And he's a got a new constituency at CIA, and so he wants not to break faith with his fellow agents.

SIMON: Let me ask you about another matter: Representative Jane Harman of California, apparently her voice was heard on, I guess it was an unauthorized wiretap. What's the problem that's created for her? [POST-BROADCAST CORRECTION: Reports say the wiretap had been approved by a court.]

WILLIAMS: Well, it's a terrible problem in the sense that here she was, a former head of the Intelligence Committee in the House in fact, and here she was on the wiretap apparently talking to people at the American Israeli Political Action Group, AIPAC, saying, you know, that she wants to move ahead and the Congress - and they were saying, yeah, we'll support you, and then she's saying she's going to help them avoid prosecution for possibly getting involved with espionage. [POST-BROADCAST CORRECTION: Published reports actually say she was talking to a suspected Israeli agent, who offered political help if she would intercede on behalf of two indicted AIPAC members suspected of espionage.]

And for a sitting public official, especially one involved in U.S. intelligence to go that far, really, I think, is problematic without a doubt, if not something that could be prosecuted.

SIMON: She explicitly denies that there's anything improper and says...

WILLIAMS: She says she wants the whole tapes released now, that she says that will exonerate her.

SIMON: NPR news analyst Juan Williams. Thanks so much.

WILLIAMS: You're welcome, Scott.

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