Obama's long and labored path to doing the right thing

What began as passable clarity has now lapsed into utter anarchy.

Sunday, on ABC's "This Week," Chief of a Very Confused Staff Rahm Emanuel said, point blank, it's time to move on. "It is not a time to use our energy and our time in looking back, and in a sense of anger and retribution." There would be, he said, no prosecutions.

Next day, according to the NY Times, "administration officials said ... that Mr. Emanuel had meant the officials who ordered the policies carried out, not the lawyers who provided the legal rationale."

That would be Monday, yet it was also Monday when Robert Gibbs said flatly that President Obama has no interest in prosecuting anyone.

So it was that both Obama's chief of staff and press secretary appeared to redefine, if not overrule, the president's own statement issued last week on release of the torture 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." By omission, others would be; and that was the little ounce of clarity we all counted on.

Which is precisely what senior advisor David Axelrod repeated two days ago on "Face the Nation": "Well, the president has said, if there were agents of the United States government acting on legal advice that what they were doing was legal and appropriate, that they should not be prosecuted. If people acted outside the law, that's a different issue." The writing of illegal memos falls into that "different" category.

Ah, but that was Sunday. Then, as noted, and logically enough, came Monday. Now the president himself was contradicting his own "administration officials," who contradicted Rahm Emanuel, who contradicted David Axelrod, who pre-contradicted Robert Gibbs.

Speaking at CIA headquarters yesterday, President Obama appeared to confirm Emanuel and Gibbs, while denying Axelrod as well as his own written statement of last week: Let's concede that "mistakes" were made, he said, and for heaven's sake move on.

Just hours later, however, Obama's aides were doing the same number on him as they had done on Emanuel. Reports the Times: "While Mr. Obama vowed not to prosecute C.I.A. officers for acting on legal advice, on Monday aides did not rule out legal sanctions for the Bush lawyers who developed the legal basis for the use of the techniques." (Techniques? Gentlemen of the Times, that's spelled t-o-r-t-u-r-e.)

So maybe we're back where we started -- non-prosecution at the operational level, and probable legal action against those "who developed" the illegalities. We can't be sure, of course, since Robert Gibbs hasn't yet spoken today at the time of this writing. But that's the way things look. We think.

In my opinion, that's the way things should stay, right up until criminal charges are filed against those "Bush lawyers." Obama had it right to begin with, and I suspect that he suspected that that's where we'd wind up: prosecuting the architects but not those who merely followed the blueprints.

There are always a lot of poor analogies floating around the Internets, but the weakest is that in which CIA agents on the ground are compared to Nazi war criminals who later defended themselves through the "just following orders" argument. The comparison simply doesn't wash. Nazi war crimes were atrocities in which every participant incontrovertibly knew of the illegality of his actions under, if nothing else, international law. Therefore their defense of "just following orders"; there was no real question, in anyone's mind, that the orders were incommensurably illegal. CIA interrogators, on the other hand, conducted themselves according to what they were told by superiors -- through the Justice Department -- was perfectly legal, in perfect accordance with U.S. Constitutional and international law.

Hence that analogy is easily dispatched; its logic not so much offensive as flawed. The other analogy floating about cyberspace, however, is decidedly offensive: that Obama's reluctance to prosecute agents on the operational level puts him in the same wretched, dictatorial league as George W. Bush.

This colossal mess was not of Obama's making, and further, he has found himself in a whopper of an internal bind -- hardly one of presidential intent. The legal reasoning behind prosecution of operational agents is, as noted, shaky at best and reason enough not to pursue it. But if Obama proceeded anyway, and that ill-advised prosecution was then followed by mass disgruntled defections at CIA, and those defections were then followed by a terrorist attack on American soil -- well, that would spell The End for Obama's presidency. Period.

Is there a regrettable element of the political in that judgment? Well, duh.

In the last analysis even the loftiest of notions -- say, the Rule of Law -- often comes down to the political. That's not a cynical observation on my part, just a statement of human nature. And it's the political that Obama needs now more than ever, to help support and confirm the lofty -- which, I'm convinced, he genuinely wants.

He needs Pat Leahy or Dianne Feinstein or John Conyers or somebody to take the bloody heat off him. That's the wiser alternative -- have Congress investigate Bush's conspicuously criminal architects and have Justice follow up. Furthermore, I suspect that's the alternative that Obama has been begging for behind the scenes: for someone of a Congressional bent to force Justice's hand.

And that's about as much clarity as I can gather from this fiasco.