Obama aides are wary of taking any steps that would smack of political retribution. That's one reason they are reluctant to see high-profile investigations by the Democratic-controlled Congress or to greenlight a broad Justice inquiry (absent specific new evidence of wrongdoing). "If there was any effort to have war-crimes prosecutions of the Bush administration, you'd instantly destroy whatever hopes you have of bipartisanship," said Robert Litt, a former Justice criminal division chief during the Clinton administration. A new commission, on the other hand, could emulate the bipartisan tone set by Tom Kean and Lee Hamilton in investigating the 9/11 attacks. The 9/11 panel was created by Congress. An alternative model, floated by human-rights lawyer Scott Horton, would be a presidential commission similar to the one appointed by Gerald Ford in 1975 and headed by Nelson Rockefeller that investigated cold-war abuses by the CIA.
The idea of such panels is not universally favored among Obama advisers. Some with ties to the intelligence community fear the demoralizing impact on intelligence officers, said one source who had discussions with Obama aides about the idea. But during the campaign, both Obama and Eric Holder, slated to be nominated as attorney general, sharply criticized the use of torture and the legal rulings that permitted them. Holder called some Bush counterterror policies "excessive and unlawful."