Poor President Obama. Through the campaign for the nomination, the campaign for the presidency and now his first four months in office, he has displayed political prescience of the highest order--this coupled with a mastery of framing issues. And the pursuit of the previous administration for its misbehavior is something with which he really really does not want to get bogged down. As early as April of '08 he was quoted as saying "If crimes have been committed, they should be investigated." But he quickly added, "I would not want my first term consumed by what was perceived on the part of the Republicans as a partisan witch hunt, because I think we've got too many problems to solve."

By early October, when more information was bubbling up about the Bush administration's secret authorization of torture, he put out this statement:

The secret authorization of brutal interrogations is an outrageous betrayal of our core values, and a grave danger to our security. We must do whatever it takes to track down and capture or kill terrorists, but torture is not a part of the answer - it is a fundamental part of the problem with this administration's approach. Torture is how you create enemies, not how you defeat them. Torture is how you get bad information, not good intelligence. Torture is how you set back America's standing in the world, not how you strengthen it. It's time to tell the world that America rejects torture without exception or equivocation. It's time to stop telling the American people one thing in public while doing something else in the shadows. No more secret authorization of methods like simulated drowning. When I am president America will once again be the country that stands up to these deplorable tactics. When I am president we won't work in secret to avoid honoring our laws and Constitution, we will be straight with the American people and true to our values,

Many of his most ardent supporters long saw the Bush/Cheney administration as criminal. Statements like this were interpreted to imply support not just for not doing it any more, but for holding those who had done it accountable.

But in an interview with George Stephanopoulos shortly before the inauguration, he pulled back sharply. While saying, "I don't believe that anybody is above the law," he finished with "when it comes to national security, what we have to focus on is getting things right in the future, as opposed looking at what we got wrong in the past."

The debate about what to do and when to do it has hardened.

The core argument for prosecution was pithily summarized today by Professor Jonathan Turley, who has been a leading voice for the prosecution of those who used torture as an interrogation tool, and for those who authorized the practice, and those who created the structure within which it took place. On his blog today, he simplifies and clarifies the argument to three simple statements:

• Waterboarding is Torture
• Torture is a War Crime
• We are obligated to prosecute War Crimes

Dahlia Lithwick fears that the Obama administration continues to avoid the sticky issue of pursuing prosecution of (or at a minimum, a truth and reconciliation inquiry into) the previous administration’s possible war crimes. A couple of weeks ago, Obama reiterated that “nothing will be gained by spending our time and energy laying blame for the past.” Lithwick asks if we are indeed past it, since it is over? Or do we need as a nation to face what was done in our name? Says Dahllia, “the real risk of getting over it is the possibility that it happens all over again.”

Among those leading the opposition to any investigation or prosecution is former vice president Cheney, whose argument is pragmatic: the methods worked. They gained intelligence that would not otherwise have been obtained, and that had great value in preventing subsequent attacks on the U.S. He says that this efficacy will be demonstrated with release of additional memos now secret (the irony has been noted of Cheney, long adamant about the privacy of his internal communications as VP, now urging the release of secret memos).

Last month, following the release by the Obama administration of four memos from the previous administration authorizing torture, Michael Hayden and Michael B. Mukasey posted a lengthy analysis in the Op-Ed section of the Wall Street Journal. Gen. Hayden was director of the Central Intelligence Agency from 2006 to 2009. Mr. Mukasey was attorney general of the United States from 2007 to 2009. Their point is told by the headline and deck: "The President Ties His Own Hands on Terror: The point of interrogation is intelligence, not confession." Nothing about law, morality or war crimes.

But Rep. John Conyers, chair of the House Judiciary Committee, is pushing for a commission of inquiry. He said of the WSJ piece "two former Bush Administration officials again took to the papers to justify these practices by claiming that the interrogation of Abu Zubaydeh had been a clear success and had led to the disruption of terrorist plots. Yet just two weeks ago, former Bush Administration officials who monitored this interrogation told reporters that 'not a single significant plot was foiled' as a result. The American people deserve a non-partisan answer to such fundamental questions."

Pressures are building. Former Bush administration officials have launched a behind-the-scenes campaign to urge Justice Department leaders to soften an ethics report criticizing lawyers who blessed harsh detainee interrogation tactics. Their line is to point out to lawyers in the Justice Department the troubling precedent of imposing sanctions on legal advisers.

And it was reported today that Speaker Pelosi (then the ranking member of the House intelligence committee) was in fact briefed on the harsh interrogation techniques in September of 2002. Republicans have accused her of political hypocrisy, objecting only when the tactics became public and antiwar activists protested. Pelosi's office said yesterday that she had never been briefed about the use of waterboarding, only that it had been approved by Bush administration lawyers as a legal interrogation technique."

The skirmishing will grow more intense. But the fundamental issue still seems clear. Here's Anthony Romero, executive director of the American Civil Liberties Union:

"Torture is a crime, and we are hopeful that President Obama [acknowledges] the need for criminal investigations of those who authorized, legally justified and carried out these unlawful acts. Accountability is not retribution; it is justice."

(Dave Sagarin, May 8, 2009)