Could some Bush officials still be prosecuted?

The Obama administration won't try CIA officials and agents involved in torture, but there's still a chance former DOJ staffers could face some sanction.

Published April 16, 2009 11:55PM (EDT)

In their statements about the release of four legal memos about CIA interrogation techniques, both President Obama and Attorney General Eric Holder made it very clear that any CIA officers who were relying on those legal opinions will not be prosecuted. Left unclear, however, was the fate of the people responsible for the memos. So far, it appears that's because the Obama administration hasn't come to a decision about them yet.

The specific line in the president's statement is, "[I]t is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution." Asked about this, and the omission of the people who provided that legal advice, a White House aide would tell Salon only, "in regard to the president's statement and the line, the line was a specific reference to intelligence officials who acted in good faith."

But that doesn't mean any inferences about the fate of the Office of Legal Counsel staffers who drew up the memos should be drawn from this. With the staffers' fate as yet undecided, the administration may just be trying to keep hope alive for their allies on the left, like Sen. Russ Feingold, D-Wis., who said in a statement Thursday, "As I understand it, [Obama's] decision does not mean that anyone who engaged in activities that the Department had not approved, those who gave improper legal advice or those who authorized the program could not be prosecuted."

As it stands now, the words "good faith" might be the most important factors not just for CIA officers involved in torture but for the coming decisions about memo authors such as Jay Bybee and John Yoo. Justice Department officials declined to comment to Salon, but it's likely the administration will make those decisions after an ongoing review by the DOJ's Office of Professional Responsibility into the attorney's actions is complete. According to a letter Sens. Dick Durbin, D-Ill., and Sheldon Whitehouse, D-R.I., sent to the OPR head in February of this year, the review hinges on whether the legal advice people like Bybee and Yoo provided "was consistent with the professional standards that apply to Department of Justice Attorneys."

By Alex Koppelman

Alex Koppelman is a staff writer for Salon.

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Department Of Justice Torture War Room