From a statement issued by the White House today:

The Department of Justice will today release certain memos issued by the Office of Legal Counsel between 2002 and 2005 as part of an ongoing court case. These memos speak to techniques that were used in the interrogation of terrorism suspects during that period, and their release is required by the rule of law. . . .

But that is not what compelled the release of these legal documents today. While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future. However, after consulting with the Attorney General, the Director of National Intelligence, and others, I believe that exceptional circumstances surround these memos and require their release.

First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.

In releasing these memos, it 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. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs. . . .

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.

So what can we conclude from this?

1.  The Administration has decided to release those documents that show how the torture regime came about.  The docs are not yet out, and I’m guessing that parts will be redacted, but chances are that they will include further evidence of just how far down the road the Bush Administration went.

2.  That said, it’s not clear clear the Administration would have released these memos without the ACLU lawsuit.

3.  The Administration not only does not want to prosecute anyone, it does not want anyone else spending “time and energy laying blame for the past.”  That means it will oppose any efforts to establish a Congressionally sanctioned investigative body modeled after the 9/11 Commission.

4.  CIA Director Leon Panetta won the battle to grant immunity to line officers who implemented the Bush Administration’s torture regime.  He did not, however succeed in preventing the memos from being released.  It’s not yet clear the degree to which he was successful in getting them redacted.

5.  It is an irony, but this probably will help Panetta’s efforts to reform the Agency and clean up some of the messes left by the previous Administration.

6.  It remains unclear whether this decision will hinder what I assume are behind-the-scenes efforts to get the Spanish to walk back from their decision investigate six Bush Administration officials for torture.  I suspect that my former colleagues in the human rights community will conclude that the chances of a domestic prosecution are now slim, and will push the Spanish courts to pursue this further.

7.  If the Spanish court indicts any former Bush Administration officials, it will create more problems for Obama than any domestic investigation would have.

8.  Given the the Spanish investigation, and given the fact that the memos may produce more outrage, there remains a chance that Congress will move to establish a Commission without the support of the Administration.  You may remember that Congress created both the 9/11 Commission and the Iraq Study Group despite opposition from the Bush Administration.  That said, I see no interest in Congress (beyond Patrick Leahy and a few others) to push for such a Commission.

9.  The Administration’s actions today — particularly its announced intention not to pursue prosecutions — should have the effect of smoothing the path to the confirmation for Dawn Johnsen to head the OLC and Harold Koh to serve as Legal Adviser in the State Department.

10.  This isn’t a game ender, but it is a game changer.  No matter what those who want prosecutions may think, most Americans are tired of anything that requires them to reflect on the Bush Administration.  There has never been the level of sustained public outrage about the Bush torture policies that we’ve seen in the case of those responsible for the economic crisis.

What do you think?  If you haven’t yet, vote in our poll on what should happen next.

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UPDATE:  Several sources have reported that only the CIA agents’ names will be redacted.

One other thing:  some in the media are saying that Obama has granted immunity to those who implemented the Bush Administration’s policies.  Unless I’m mistaken (and please tell me if I am), the only power the President has is to pardon them.  His administration can choose not to prosecute, and to oppose any attempt by others to do so, but the President does not have the power to grant immunity per se.

Related posts

• Torture: Something Old, Something New
• The Torture Memos: The Two John McCains
• The Growing Campaign to Impeach Jay Bybee
• Prosecuting Those Responsible for War Crimes
• Power Corrupts. Unenumerated Powers. . .