WASHINGTON — The release of four Bush administration memorandums approving the use of waterboarding and other harsh interrogation techniques has increased momentum for an investigation into the architects of the program, but the prospect of indicting any of them remains unlikely.
Difficult legal and political hurdles remain to criminal prosecutions of the high-level policymakers, and even lesser punishments — like disbarment of the lawyers who signed off on the program — are supported by few precedents, legal specialists say.
"Those who want heads to roll are likely to be dissatisfied," said Daniel C. Richman, a professor of criminal law at Columbia University.
Still, human-rights advocates said they believed the ground had shifted in the last week toward holding a searching look at the interrogation policy. "A criminal investigation of torture crimes now seems very likely," said Christopher E. Anders, senior legislative counsel at the American Civil Liberties Union.
Whether an investigation would result in criminal trials, however, is another matter. Richman said prosecutors could easily bring a case against individual interrogators who went beyond the limits of the authorized program or who may have committed a related crime, such as improperly destroying interrogation tapes.
But the criminal process is full of choke points that would make it hard for a prosecutor to build a strong case against officials involved in the approved program, he said.
For example, were the Justice Department to prosecute the CIA interrogators who carried out the policies — which President Barack Obama and Attorney General Eric H. Holder Jr. have repeatedly said will not happen — the interrogators could say that they relied on the Justice Department's advice that the program was legal.
Efforts to prosecute the high-level Bush administration officials who created and authorized the interrogation program in 2002 — like Vice President Dick Cheney, ex-CIA director George Tenet, Defense Secretary Donald Rumsfeld and Alberto R. Gonzales, who was then White House counsel — also "would be extremely difficult," said Eric Posner, a University of Chicago law professor.
It could create a partisan firestorm that Obama, who has said he wants to concentrate on fixing the economy and on other parts of his agenda, would prefer to avoid for political reasons. And, like the interrogators, the policymakers could argue that government lawyers assured them the program was legal.
"The political officials would say they believed what they were doing was lawful, and a jury could very easily believe that," Posner said.
The shield against prosecution provided by the Bush legal team's assurances has led some critics to focus on the role played by the lawyers themselves, like Cheney's counsel, David S. Addington; Rumsfeld's counsel, William J. Haynes II; and the authors of the Justice Department memorandums: John C. Yoo, Jay S. Bybee and Steven G. Bradbury.
Legal specialists from across the ideological spectrum have criticized those memorandums, especially a set written in 2002 by Yoo and Bybee, who is now a federal judge. Some have accused the lawyers of deliberately writing down a false reading of the law to enable policymakers to violate it with impunity.
But there is little precedent for prosecuting government lawyers who provide bad legal opinions.
One thing could change that, however. If it can be proved that the lawyers initially concluded that aspects of the proposed program would be illegal, then reversed that conclusion at the request of policymakers, then prosecutors could make a case that the officials knowingly broke the law.