Why Obama Doesn't Care About Yoo

The Atlantic's coverage of the first 100 days of the Obama presidency begins next week, assuming the geeks don't rise. But this blog will focus on the second 100 days. I've been trying to figure out what the White House is using as an internal frame -- and what they'd like to see as the end result. In the end, it's fairly simple.  And it explains why the White House is publicly and privately resisting a new investigation into the past.

Opening the reporter's notebook after a week of confusing reports, here's what I think the White House is thinking:

First -- set up the 2nd 100 days. Act as if the approval rating is dangling.... act as if it will inevitably decline... and so -- rush, rush, rush. get as much done as possible -- particularly on health care. Don't pick unnecessary fights with the Democratic base, and use every arrow in the West Wing quicker to keep labor happy. Use the fury of Rahm to keep Democrats in Congress focused on policy. Do the heavy lifting on policy now.  As for the president himself: lift him up. Keep him in front of moderate and independent audiences. Work on the Big Picture and America's image in the world. Worry about Afghanistan and Pakistan. Give Israel some tough love on settlements. Do NOT take on unnecessary battles.

Now then -- it's clear why Obama never wanted a torture commission, or some sort of a special counsel for torture -- or anything like that. Wait -- how did I manage to transition to this subject without transitioning?  "Unnecessary battles."  Obama said it many times during the campaign: as president, he did not want to refight the ideological and policy battles of the past eight years. Obama won't go there. That's not where he's at. He is not sentimental. He He does not want Democrats to bog themselves down in an orgy of masturbatory vengeance-- that's my phrase, not his.  He is also the president. He cares about precedent. (I'm told that in the internal deliberation about whether to release the OLC memos, Obama asked his interlocutors about precedent -- what future presidents like Mitt Romney (I don't know if he actually used Romney as an example) would do with the secrets of the Obama administration.)

As a constitutional law scholar, Obama knows he can't tell the Attorney General whom or whom not to prosecute; he doesn't want to influence the DOJ OPR reviews; the White House messed up the comms on this one, but their position never changed.  Holder never wanted a special prosecutor either; during the transition, he and Obama explicitly discussed this subject and they found that they agreed with each other.

Obama also knows that the torture issue is bound up with many other sensitive intelligence practices, like extraordinary rendition, immigration detention, battlefield interrogations, surveillance and the authority to order the murder of terrorists. He knows that the OLC memo release risks the release of the wagon. Here, he weighed transparency, precedent and national security and struck the balance he finds appropriate.

Holder and Obama also know that the ultimate decision to prosecute will be Holder's, and it will arise from facts not yet in evidence. Holder cannot order his U.S. Attorneys to refuse to accept evidence that interrogators, particularly contractors, deliberately violated the OLC guidelines. If the OPR review finds that DoJ lawyers willfully engaged in misconduct to justify obviously illegal practices, then Holder may not have a choice. (If he did, he wouldn't. But he might not.)

So Barack Obama doesn't really care about John Yoo. Yoo's fate is out of Obama's hands. Having Congress spend the 2nd 100 days of his presidency talking about John Yoo means that Congress won't be focused on health care, energy, the environment and education. The White House brain trust genuinely believes that the midterm election craze will stymie policy-making in the fall of 2009 and in 2010. It knows that it is going to have to fight tough national security battles with its own party by the end of the year. So it is setting priorities.

Please send along your comments. Is this what the White House should be doing? Are they shirking their responsibility to hold the Bush Administration accountable?