Barack Obama

• 4/29/09: "I believe that waterboarding was torture. And I think that the — whatever legal rationales were used, it was a mistake."
• 2/10/09: "nobody's above the law and, if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen."
• 1/11/09: "We're still evaluating how we're going to approach the whole issue of interrogations, detentions, and so forth. And obviously we're going to look at past practices. And I don't believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders and lawyering up.
  We have not made any final decisions but my instinct is for us to focus on how do we make sure that moving forward, we are doing the right thing. That doesn't mean that if somebody has blatantly broken the law, that they are above the law. But my orientation's going to be to move forward."
• 11/08: "I have said repeatedly that America doesn't torture. And I'm going to make sure that we don't torture."
• 4/14/08: What I would want to do is to have my Justice Department and my Attorney General immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve.
  So this is an area where I would want to exercise judgment -- I would want to find out directly from my Attorney General -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important-- one of the things we've got to figure out in our political culture generally is distinguishing betyween really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I've said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law -- and I think that's roughly how I would look at it.
• 10/07: "Torture is how you create enemies, not how you defeat them."

Joe Biden

• 9/3/08: "If there has been a basis upon which you can pursue someone for a criminal violation, they will be pursued – not out of vengeance, not out of retribution, out of the need to preserve the notion that no one, no attorney general, no president -- no one is above the law."

Eric Holder

• 3/20/09: "We will let the law and the facts take us to wherever we go," Holder said. But he added that the administration does not want to criminalize policy differences. Holder said the department is "mindful" of recent news accounts [on torture]. But when asked whether there was a formal Justice Department investigation, Holder said, "I wouldn't say that."
• 1/09: "Prosecutorial and investigative judgments must depend on the facts, and no one is above the law. But where it is clear that a government agent has acted in "reasonable and good-faith reliance on Justice Department legal opinions" authoritatively permitting his conduct, I would find it difficult to justify commencing a full-blown criminal investigation, let alone a prosecution."
• 6/14/08 "our government authorized the use of torture, approved of secret electronic surveillance of American citizens, secretly detained American citizens without due process of law, denied the Writ of Habeus Corpus to hundreds of accused enemy combatants, and authorized the use of procedures that both violate international law and the United States Constitution.
  Now, I do not question the motives, patriotism of those responsible for these policies. But this does nothing to mitigate the fact that these steps were wrong when they were initiated and they are wrong today. We owe the American people a reckoning. It is our responsibility as citizens to preserve and protect our Constitution...
  I never thought I would see the day when a Justice Department would claim that only the most extreme infliction of pain and physical abuse constitutes torture, and that acts that are merely cruel, inhuman or degrading are consistent with United States law and policy. That the Supreme Court would have to order the president of the United States to treat detainees in accordance with the Geneva Convention. Never thought that I would see that a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens.
  This disrespect for the rule of law is not only wrong, it is destructive on our struggle against terrorism...
  We as Americans must stand up and recognize the mistakes that we have made, and we as Americans together must begin the process of correcting those errors as we have in the past. Our great democratic institutions and our tremendous respect for law are without doubt strong enough to weather the storm as they have weathered so many before. The rule of law and our stature in the world are inevitably, historically and inextricably linked. From the trials in Nurenburg to our victory in the Cold War, our respect for the rule of law has been a powerful tool to promote our national interests on the international stage.
  If we hope to take our place as a leader on that stage we must reaffirm these, our most treasured values. This is our challenge.

Dawn Johnsen, Office of Legal Counsel

• "We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation's past transgressions and reject Bush's corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation's honor be restored without full disclosure."

Obama advisors

• 12/3/08: "President-elect Obama strongly supports the I.C.C.’s efforts to investigate and prosecute those responsible for atrocities in Sudan." Brooke Anderson, Obama’s chief national security spokeswoman.
• 11/13/08: a commission empowered by Congress would have the authority to compel witnesses to testify and even to grant immunity in exchange for information. Should a particularly ugly picture emerge, the option of prosecutions would still theoretically be on the table later, however unlikely.
  In Obama's camp, there is a sense among some that such a commission would essentially mean letting Bush get away with crimes. "People have called for criminal investigations," one person familiar with the talks told me this summer as plans got under way. On Wednesday, a person participating in the talks confirmed that some people involved in the planning felt strongly that the commission would amount to "bullshit" and that Bush officials should be prosecuted to the full extent of the law.
  But few think prosecutions are realistic, given the formidable legal hurdles and the huge policy problems competing for Obama's attention. Among them is the complicated task of closing down the military prison at Guantánamo Bay, which Obama advisors say is a priority. Some observers outside the Obama camp are also questioning how much Democrats really want exposed with regard to interrogation, since top Democrats in Congress were briefed in secret on some of the harshest tactics used by the CIA and appear to have done little, or perhaps nothing, to stop them.
• 8/4/08: Prosecution of any officials, if it were to occur, would probably not occur during Obama's first term. Instead, we may well see a congressionally empowered commission that would seek testimony from witnesses in search of the truth about what occurred. Though some witnesses might be offered immunity in exchange for testimony, the question of whether anybody would be prosecuted would be deferred to a later date -- meaning Obama's second term, if such is forthcoming.

Sen. Pat Leahy

• 2/25/09 "The past can be prologue unless we set things right. The last administration justified torture, presided over the abuses at Abu Ghraib, destroyed tapes of harsh interrogations, and conducted "extraordinary renditions" that sent people to countries that permit torture during interrogations. The last administration used the Justice Department – our premier law enforcement agency – to subvert the intent of congressional statutes. They wrote secret law to give themselves legal cover for these misguided policies, policies that could not withstand scrutiny if brought to light."
  "There are others who say that, regardless of the cost in time, resources, and unity, we must prosecute Bush administration officials to lay down a marker. The courts are already considering congressional subpoenas that have been issued and claims of privilege and legal immunities – and they will be for some time. Over my objection, Congress has already passed laws granting immunity to those who facilitated warrantless wiretaps and conducted cruel interrogations. The Department of Justice issued legal opinions justifying these executive branch excesses which, while legally faulty, would undermine attempts to prosecute. A failed attempt to prosecute for this conduct might be the worst result of all if it is seen as justifying abhorrent actions. Given the steps Congress and the executive have already taken to shield this conduct from accountability, that is a possible outcome."
• 2/25/09 "Such a commission's objective would be to find the truth. People would be invited to come forward and share their knowledge and experiences, not for the purpose of constructing criminal indictments, but to assemble the facts, to know what happened and to make sure mistakes are not repeated. While many are focused on whether crimes were committed, it is just as important to learn if significant mistakes were made, regardless of whether they can be proven beyond a reasonable doubt to a unanimous jury to be criminal conduct. We compound the serious mistakes already made if we limit our inquiry to criminal investigations and trials."
• 2/17/09 "Instinctively, I'd prefer prosecutions too, but in my experience you usually end up getting only the small guys while the top people get away... a thorough prosecution could take 12-15 years, and I would like to get some answers quickly."
• 2/12/09 "On the issue of immunity & prosecutions, a failed attempt to prosecute for this conduct would be the worst result of all as it could be seen as justifying and exonerating abhorrent actions. Given the steps Congress and the executive have already taken to shield this conduct from accountability, any prosecution could be difficult. What's more, prosecutions could take 5, 10, or more years to accomplish -- and we need to get to the truth much more quickly.
  Of course, this avenue would be pursued in consultation with the Justice Department and would not rule out prosecution in appropriate cases, particularly for perjury before the commission -- or for those individuals who choose not to testify before the commission, but are implicated by others. We could certainly prosecute those people.
  No Attorney General should make a commitment not to prosecute for any crime without having investigated the issue. Some asked Eric Holder to commit not to prosecute for anything that happened on President Bush’s watch. That is a pledge no prosecutor should give, and Attorney General Holder did not. My proposal does not ask for Attorney General Holder to make any such commitment."

Sen. Sheldon Whitehead

• 2/24/09: Plans to establish the [truth] commission still remain in their infancy, as senators and staff look at previous panels, such as the 9-11 Commission, and investigations following Watergate. Whitehouse, a former U.S. attorney, noted that a torture commission might need the power to immunize witnesses on a case-by-case basis. The prospect of future prosecutions, he said, are beside the point. Most important was putting a spotlight on abuses committed by the Bush administration.
  "We have this American government, which has an architecture and a shape and a system that drives it and constrains it and that keeps it honest," he said. "And what happened is that the Bush administration figured out a lot of ways to tunnel through the walls and sneak over the fences. So now we need to go back and say, 'We have got to plant those walls deeper so you can not tunnel under them.' We've got to spotlight how they did it," Whitehouse explained. "The ultimate goal in this is to protect and enhance American democracy."
• 1/21/09: "As the President looks forward and charts a new course, must someone not also look back to take an accounting of where we are, what was done, and what must now be repaired? Our new President has said, 'America needs to look forward.' I agree. Our new Attorney General-designate has said: We should not criminalize policy differences. I agree, and I hope we can all agree that summoning young sacrificial lambs to prosecute, as we did after Abu Ghraib, would be reprehensible."
• 6/5/08: "I believe the irresponsibility and mismanagement of this Administration will go down in our history as among the darkest moments our government has witnessed. It rots the very fiber of democracy when our government is put to these uses."

House Speaker Nancy Pelosi

• 2/25/09 MADDOW: if the inspector general report that comes out this summer suggests that there has been criminal activity, at the official level on issues like torture or warrantless wiretapping or rendition or any of these other issues.
  PELOSI: No one is above the law. The president has said that.
  MADDOW: And you think that you would support a referral for criminal investigation and potential prosecution?
  PELOSI: Exactly. Yes, absolutely. No one is above the law. But we have to go through—we have to have the facts. I mean, we are unhappy about certain things, we anecdotally know about certain things, we will have the documentation of it and we can go forward.

Arguments

• Anthony D'Amato & Jordan Paust
  12/3/08: The 1949 Geneva Civilian Convention, which is considered treaty law of the United States, expressly and unavoidably requires that all parties search for perpetrators of grave breaches of the treaty and bring them "before its own courts" for "effective penal sanctions" or "if it prefers . . . hand such persons over for trial to another High Contracting Party." The obligation is absolute. The United States must either initiate prosecution or extradite to another state. "Grave breaches" of the Convention include "torture or inhuman treatment" and unlawful transfer of a non-prisoner of war from occupied territory.
• John Dean 1/24/09: My question is how can the Obama Administration not investigate, and, if appropriate, prosecute given the world is watching, because if they do not, other may do so? How could there be "change we can believe in" if the new administration harbors war criminals -- which is the way that Philippe Sands and the rest of the world, familiar with the facts which have surfaced even without an investigation, view those who facilitated or engaged in torture?
  One would think that people like Cheney, Rumsfeld, Addington, Gonzales, Yoo, Haynes and others, who claim to have done nothing wrong, would call for investigations to clear themselves if they really believed that to be the case. Only they, however, seem to believe in their innocence -- the entire gutless and cowardly group of them, who have shamed themselves and the nation by committing crimes against humanity in the name of the United States.
• Scott Horton: "This administration did more than commit crimes. It waged a war against the law itself."
• Michael Ratner: "If laws can be broken with impunity today, they can and will be broken with impunity tomorrow. Not just laws against torture and war crimes, but any and all laws; any and all limits on government."
  12/3/08: "In a democracy, it is the job of a prosecutor and not the pundits to determine whether crimes were committed."
  12/3/08: Criminal prosecutions are not about looking to the past; they are about creating a future world without torture. They will be the mark of the new dawn of America’s leadership and our new era of accountability. Prosecuting these officials would help the United States regain its moral standing in the world and to prove our commitment to upholding international human rights standards. In his first nationally televised interview, President-elect Barack Obama made this promise: “I have said repeatedly that America doesn't torture. And I'm going to make sure that we don't torture.” The best way to do that is to prosecute those who designed the torture policies.
• Andrew Sullivan 1/25/09: I do not believe in a witch-hunt in the CIA, whose many hard-working officers deserve support not censure. I do believe in holding responsible those high elected officials who broke the law and violated the Constitution in authorizing war crimes. It should take as much time as needed for a thorough accounting; it should be meticulously fair; it should be geared solely to ensure that the rule of law is no longer in question; and that only those truly responsible at the top of the chain of command are held liable. But if we do not hold these men to account, the precedent they set is alarming.
  They have, after all, argued that the executive branch can do anything to anyone to defend the nation's security as defined and measured by that executive branch itself. They have argued that that power is permanent and not restricted to a discrete length of time. They have declared the Constitution to be entirely subject to the executive's will, checked only by a four year "moment of accountability". And they are unrepentant - even boastful of their actions. We cannot leave that precedent in place.
• Gen. Antonio Taguba: "There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account."
• Jonathan Turley:
  3/24/09: The president refuses to allow the investigation of war crimes. And we just found out the international Red Cross, also the definitive body on torture, found that this was a real torture program. And yet, the president is having a debate with the guy [Cheney] over whether it was good policy. . . . It is just as bad to prevent the investigation and prosecution of a war crime as its commission because you become part of it. There‘s no question about a war crime here. . . . You know, some people say, what do you need, a film? We actually had films of us torturing people. So this would be the shortest investigation in history. You have Bush officials who have said that we tortured people. We have interrogators who have said we tortured people. The Red Cross has said it. A host of international organizations have said it. . . . He should be appointing a special prosecutor. There is no question about that. This is the most well-defined and publicly known crime I have seen in my lifetime. There is no debate about it. There is no ambiguity. It is well known.
  2/10/09: We don't have any question about the obligation to follow these treaties, there's no question that torture occurred here. There's no question it was a war crime. And so, the only reason to have a commission of this kind is to avoid doing what we're obligated to do under a treaty. And the fact is that these members of Congress view this as a very inconvenient time to fight on principle. But they would do us all a favor if they just saved the money on another useless commission and just take the old 9/11 Commission report, rip off the cover and put a new cover on, and call it a day-because it is shameful that we would be calling for this type of commission. Everyone knows what we're doing. We're in violation of our obligations now. We were supposed to investigate. It's not up to President Obama. It's not up to Senator Leahy.
  We're obligated to investigate. This whole discussion in front of the whole world is basically saying that we are not going to comply with the promise we made not to ourselves but to the world.
  11/18/08: "The most successful democracy in history is just about to see war crimes, do nothing about it -- and that's an indictment not just of George Bush and his administration. It's an indictment of all of us if we walk away from a clear war crime and say it's time for another commission."