BOB GARFIELD: And I'm Bob Garfield. President Obama recently declassified a number of legal opinions issued by the Bush Administration’s Office of Legal Counsel. The so-called “torture memos” triggered controversy. Is a president who discloses sensitive intelligence-gathering techniques jeopardizing national security? Is torture fundamentally un-American? And, not least, would or should Obama seek prosecution of those responsible for torture?

BROOKE GLADSTONE: On the issue of prosecution, Chief of Staff Rahm Emanuel apparently spoke for the Obama Administration on last Sunday’s This Week with George Stephanopoulos.

RAHM EMANUEL: He believes that people in good faith were operating with the guidance they were provided. They shouldn't be prosecuted.

GEORGE STEPHANOPOULOS: Well, what about those who devised the policy?

RAHM EMANUEL: Yeah, but those who devised the policy, he believes that they were – should not be prosecuted either.

BROOKE GLADSTONE: In addressing CIA employees about his decision to declassify, Obama offered one logical explanation. The cow was already out of the barn. The material had already been reported by the press.

PRESIDENT OBAMA: I acted primarily because of the exceptional circumstances that surrounded these memos, particularly the fact that so much of the information was public, had been publicly acknowledged. The covert nature of the information had been compromised.

BROOKE GLADSTONE: Obama told the crowd not to be, quote, “discouraged that we have to acknowledge potentially we've made some mistakes.” He also made clear that he had no intention of making criminals of the CIA employees carrying out Bush Administration policy. But if the CIA was off the hook, who was on it? In the Oval Office the following day, the Associated Press’ Jennifer Loven said she got that Obama did not want to go after those who carried out the policies justified by the Office of Legal Counsel. But what about those who wrote the justifications for the policy? Perhaps the Justice Department’s John Yoo, author of many of the memos, or the president’s two attorney generals, or even someone in the Bush White House itself.

PRESIDENT OBAMA: With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the attorney general within the parameters of various laws, and I don't want to prejudge that.

BOB GARFIELD: His response to Jennifer Loven was not a flat no, despite what Emanuel had said on ABC. Had the Chief of Staff spoken out of turn or had the President reversed positions? Ever vigilant for intra-administration inconsistencies, many in the media concluded it was a flip-flop, in fact, a flip-flop in response to Bush haters in the Democratic Congress. “Did Obama flip-flop on prosecuting Bush officials?” asked Newsweek. “In reversal, Obama opens the door to prosecuting top Bush aides,” said McClatchy. “Obama contradicts his aides on John Yoo prosecution,” wrote The East Bay Express. And that’s from the supposedly in-the-tank-for-Obama liberal media. To those on the right, the declassification of the torture memos was a chance to change the subject from Obama is taxing us into oblivion to Obama is helping the enemy.

MALE CORRESPONDENT: You release these memos, yes, you’re trying to let the world know here’s what we did, blada- blada-blah. The other side of this is now they're going to know more about what it is you do.

MALE CORRESPONDENT: And they also know to what line we will go and what line we will not cross.

MALE CORRESPONDENT: All this information that’s come out has been incredibly damaging to the national security of our country.

BOB GARFIELD: No surprise there. On FOX, the President is a patsy and enhanced interrogation techniques are just another intelligence tool. But here’s an odd little twist. Though Obama argues that such activity is dangerous to the psyche of our military, to the integrity of our principles and to the reputation of America as a moral leader, he himself doesn't much use the T-word either. Press Secretary Robert Gibbs has noticeably backed off the word lately. You didn't hear it from Emanuel on ABC nor Obama at the CIA. It wasn't always that way.

PRESIDENT BARACK OBAMA: We do not torture, period. We don't torture. Our government does not torture.

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BROOKE GLADSTONE: Scott Horton is a law professor at Columbia University and a contributing editor at Harper's Magazine. He says that during the 2008 campaign, when Obama and John McCain discussed torture openly, the media picked up on it and it seemed we were finally calling torture “torture.” Now the President and many in the media have backtracked. What has happened in the past 90 days that would make him and his administration suddenly shy about characterizing simulated drownings, wall-slamming and five-day sleep deprivation as anything but torture? Horton explains.

SCOTT HORTON: I've put this question to a couple of staffers, both at Justice and the White House, and I get a pretty consistent response, which is two prongs. I mean, one is there’s concern that this issue is overheating in the country, that it’s commanding too much attention from the public and it’s getting in the way of the President’s affirmative agenda. And then there’s the little bit of concern about the legal consequences because torture is a crime. It’s a felony. It’s possible there'll be a criminal investigation, so there’s some concern about people in high positions in the government suggesting conclusions as to legal culpability.

BROOKE GLADSTONE: Are the media here, in not using the word “torture,” simply walking in the steps of the White House?

SCOTT HORTON: Well, I think they are. I mean, you know, to me it’s one of the things that shows, in the most clear-cut way, the influence the White House can have. I mean, if they say this word is off limits, the media, not completely but certainly by and large, will respect these limits that the White House sets up. And let's just take a clear-cut example of it, looking at all these techniques, the waterboarding technique, for instance. In fact, this was in the newspapers and broadcast media in the late 1970s and early 1980s because the Khmer Rouge, in their reign of terror in Cambodia, introduced this as a tactic. It was well documented and it was broadly reported in the United States, and both newspapers and broadcasters referred to it, axiomatically, immediately, as torture.

BROOKE GLADSTONE: Of course, they didn't introduce it. It was also used by the Japanese during World War II, and they were prosecuted by the Americans for it as torture.

SCOTT HORTON: That’s right. In fact, we can trace it all the way back to the 16th century, this same technique. But when we look at the new OLC memos and we look at their description of the use of the waterboarding technique, we see that they very faithfully reproduced exactly the Khmer Rouge variant of waterboarding – the same board, the same cloth, the same poured water, the same angles. And yet you won't see American newspapers refer to this as torture. When the Khmer Rouge do it, it’s torture. When the Americans do it, it’s not. How do you explain this?

BROOKE GLADSTONE: Is it perhaps regarded as responsible not to invoke a term that is so fraught with political and legal ramifications at a time when this story is so much in progress?

SCOTT HORTON: Yeah, we hear some editors say that. They say that the conclusion is a conclusion that can be drawn by our readers. We'll just give them the facts. But, in fact, when they use the code words, the softer language, now they are in a sense taking a side in the debate. They're accepting the administration’s characterization.

BROOKE GLADSTONE: And how important do you think is the word?

SCOTT HORTON: Well, I'd go back to George Orwell and his essay Politics and the English Language. There’s a lot in a word. When we use euphemisms, when we use politically eroded language, you know, like “enhanced interrogation techniques,” we avoid the debate, we avoid the issue and we put off its resolution.

BROOKE GLADSTONE: Scott, thank you very much.

SCOTT HORTON: Great to be with you.

BROOKE GLADSTONE: Scott Horton is a law professor at Columbia University. He’s also a contributing editor at Harper’s Magazine. His blog, No Comment, appears on Harpers.org.

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