Published July 13, 2009
President Obama's ambitious domestic agenda for "hope" and "change" could soon get caught in the middle of a bitter debate over the policies of the past.
Early in the year, the president said he wanted to "look forward" and suggested he was not interested in opening high-profile investigations into the activities of the Bush administration.
But a series of developments halfway through Obama's first year related to the Bush administration's prosecution of the War on Terror are threatening to undermine the president's agenda and overshadow his message going forward, analysts say.
Among those developments:
-- Obama's congressional allies are calling for investigations of a Bush-era CIA counterterrorism program they say was kept secret from them.
-- New questions have been raised after a group of inspectors general issued a report last week on the Bush administration's warrantless wiretapping program, noting that the administration authorized other surveillance programs that have not been made public.
"If Congress is going to get sidetracked on trying to get Bush administration officials ... every moment that's spent doing that is not spent trying to get through health care reform or cap-and-trade," said William Jacobson, associate clinical professor at Cornell Law School.
"It would create years of legal investigation," said David Rivkin, a Justice Department official during the Reagan and George H.W. Bush administrations. "It would be polarizing. It would be bad for (Obama's) agenda. It would be bad for national security."
One of the Obama proposals that would be hurt by congressional investigations into the Bush administration is cap-and-trade legislation, which is aimed at reducing carbon emissions through a complex incentive system and already faces an uncertain fate in the Senate after narrowly passing the House.
Another is the timeline for health care reform, which appears to be slipping further down the calendar. On Monday, House Speaker Nancy Pelosi planned to announce progress on a bill for health care reform, a hat tip to Obama, who earlier in the day urged lawmakers to move forward with his plan.
With climate change and health care reforms already a tough sell, Jacobson said Obama will only lose more Republican and moderate Democratic support if his allies in Congress or a special prosecutor launch a full-scale, multi-front investigation into the War on Terror.
"I don't see how this could possibly help Obama push through programs that, if they pass, are probably going to pass by the narrowest of margins," said Jacobson, who writes the Legal Insurrection blog.
Despite his reluctance to "look backward," Obama made clear in April that he was deferring to Holder on whether to prosecute Bush administration lawyers who drafted the legal justification for the interrogation techniques employed by the CIA on terror detainees.
Three months later, Holder is leaning toward appointing a prosecutor, and he could name one in a matter of weeks, a decision apparently made after reading a classified version of the CIA inspector general's report on enhanced interrogation techniques and other material.
But if a prosecutor is appointed, it could be virtually impossible to limit the scope of the investigation, Rivkin said, noting that once a special prosecutor is appointed, he or she is given "unrestrained resources" and expected to find wrongdoing.
As a result, a special prosecutor's investigation broadens and shifts course, distracting the attention of Washington -- as in the cases of former President Bill Clinton's real estate dealings and the leak of the identity of former CIA official Valerie Plame. The prosecutors in both cases did not have the evidence to support indictments related to the original allegations, but ended up catching officials in lies tied to the inquiries themselves.
Merely talking about investigating the Bush years has already proved polarizing.
The American Civil Liberties Union on Sunday released a statement nudging Holder toward appointing a prosecutor, saying the group was "encouraged" by reports that he may do so.
But Sen. John Cornyn, R-Texas, told "FOX News Sunday" that the call to investigate a prior administration is part of a "terrible trend," and suggested the same could happen to Obama after he leaves office.
"This is high-risk stuff," Cornyn said, calling on Holder to follow the advice of the president and "look forward, not backward."
Even if the debate over torture allegations is cleared away, other Democrats want to look more closely at a proposal to capture or kill Al Qaeda operatives that the CIA apparently kept secret from lawmakers.
"Congress should have been told. We should have been briefed before the commencement of this kind of sensitive program," Sen. Dianne Feinstein, D-Calif., chairwoman of the Senate Intelligence Committee, told "FOX News Sunday." "This is a big problem."
Cornyn, though, countered that the clamor over the program looks "suspiciously like an attempt to provide political cover" to Pelosi, who in May came under fire for accusing the CIA of lying to Congress.
House Democrats are now backing up Pelosi, but a former senior intelligence official told FOX News on Monday the program was never operational and that Congress originally gave the CIA authorization to develop ideas to battle terrorists.
Former Attorney General Alberto Gonzales told FOX News on Monday that the administration would not have had an "absolute" obligation to inform Congress of a secret program if it could have compromised an operation.
"There is a lot here that we don't know, and we need to let this thing play out," he said.
FOX News' Bret Baier and Mike Levine contributed to this report.