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Commentary: Torture memos aren't criminal

  • Story Highlights
  • Ruben Navarrette: Obama hasn't been consistent on torture, its consequences
  • Navarrette: Lawyers who wrote opinions on torture shouldn't be prosecuted
  • Navarrette: Terror threat U.S. faces is real, interrogators need latitude
  • Navarrette: Obama needs to choose a position and stick to it
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By Ruben Navarrette Jr.
Special to CNN
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Editor's note: Ruben Navarrette Jr. is a member of the editorial board of the San Diego Union-Tribune and a nationally syndicated columnist. Read his column here.

Ruben Navarrette says President Obama made a total mess of his position about torture.

Ruben Navarrette says President Obama made a total mess of his position about torture.

SAN DIEGO, California (CNN) -- For someone who insists he is personally opposed to torture, President Obama has a rhetorical knack for it.

This week, Obama tortured the right, left and center with his parsing, hedging, and flip-flopping on newly released Bush-era torture memos and what to do about them.

Along the way, he also tortured logic and consistency, making a total mess of his own position. Only the most die-hard Obama supporters -- those who are invested to the hilt in his presidency and find it hard to see the blemishes -- could deny this.

Obama angered Republicans by releasing the confidential documents, over objections by CIA Director Leon Panetta and Bush administration officials who worried that it would telegraph to terrorists how far U.S. interrogators are permitted to go in trying to extract information.

But he also disappointed Democrats by ruling out the prosecution of interrogators who might have engaged in what some define as torture and initially suggesting that the lawyers who had advised them wouldn't be prosecuted either because, as Obama said several days ago, "this is a time for reflection, not retribution."

And then, this week, while this middle-of-the-road approach was being applauded by those in the center who smile on nuance, he flummoxed them by reversing course and suggesting that the whole matter of whether the three former Bush Justice Department lawyers who wrote the memos -- Jay Bybee, Steven Bradbury and John Yoo -- ought to be prosecuted should be decided by Attorney General Eric Holder.

Nice. And I bet you thought the two men were friends. With friends like Obama, Holder should run out and buy a flak jacket. No matter what Holder decides, he will be criticized. And for all the hay that Senate Democrats made about how former Attorney General Alberto Gonzales allegedly politicized the Justice Department, it's ironic that Obama was so quick to drag his own attorney general into a political firestorm.

Besides, how do you go about prosecuting lawyers for simply offering legal opinions when asked for them? They've broken no law.

A friend of mine who heads up an affiliate of the American Civil Liberties Union concedes that is new territory but suggests there could be a case if the opinions were intentionally fraudulent or overly ideological.

I can imagine the same argument from conservatives the next time a liberal-leaning state attorney general issues a legal opinion supporting gay marriage. Just because a lawyer comes back with an opinion you don't like doesn't make it a crime. If Holder says otherwise, good luck to him the next time he asks one of the hundreds of lawyers in his own agency for an opinion on a politically sensitive matter.

Most disturbingly of all, by passing the buck on such an important issue, Obama has fallen short on the Harry Truman leadership scale. This is precisely why we elect a president -- to deal with tough issues, the adjudication of which is never going to make everyone happy. A real leader accepts that fact going in and doesn't cower in the face of it.

For what it's worth, on the issue of torture, I've changed my own view since September 11, 2001. For several years after the terrorist attacks, I bought the argument that the United States couldn't afford to torture terror suspects.

But now, acknowledging that the Bush administration did something right in preventing more attacks, I've come around to the view that we can't afford to take any option away from interrogators as they try to prevent an attack that could cost thousands of lives.

Too many Americans keep forgetting that the threat we face is real, and unrelenting. In fact, the Bush administration claimed that just a few months after 9/11, it thwarted a planned attack on Los Angeles where al Qaeda intended to use shoe bombers to hijack an airplane and fly it into the U.S. Bank Tower, the tallest building in the city. If enhanced interrogation played a role in foiling that plot, wouldn't it have been worth the cost?

After all the bobbing and weaving this week, I'm not really sure what President Obama believes about torture or what to do with those who authorize it. And, at this point, I don't care.

All I care about is that Obama choose a position and sticks to it, and that, as commander-in-chief, he fully grasps the enormous responsibilities that came with the office.

The opinions expressed in this commentary are solely those of Ruben Navarrette.

All About TortureBarack ObamaEric Holder

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