Gergen, a professor at Harvard University’s Kennedy School of Government and advisor to four presidents, said he saw the need for a “thorough airing” on the torture issue – and potentially for more information and memos to be released. But he believed prosecution went too far.

In terms of actually going after people, I think we should be moderate in doing that. It does seem to me it was right…to say that CIA employees should not be prosecuted in any fashion. And I have serious, deep reservations about launching some sort of prosecutorial special investigative effort by the Justice Department about lawyers who rendered their opinions. We have not done that in the past. It is going to have a hugely chilling effect. And it will destroy any semblance of bipartisanship in Washington, if a new administration is seen to use prosecutorial powers to go after a preceding administration.

Calls for prosecution have been coming from many quarters, particularly from liberals (just today, see Paul Krugman of The New York Times and Glenn Greenwald of Salon; also hear law professor Jonathan Turley on our show Monday.) Though President Obama has said he ruled out prosecuting CIA officials, he said he was leaving it up to Attorney General Eric Holder to decide whether or not to pursue higher-ranking Bush administration officials.

Gergen said that such a prosecution effort could spin out of control:

…We’re talking now about going after lawyers who rendered their legal judgments and talking about putting them in the dock as potential criminals. And by the way, are we then also going to go after the President and Vice President who signed off on this? And very importantly, are we going to go after the Congressional leaders who signed off on these procedures, some of whom are leading Democrats? And if we’re going to be fair about this…This path is going to take us where it leads. It leads to many, many different people. And do we really want to have now a whole set of criminal prosecutions in Washington over this issue or not? I think that’s very much what’s at stake here.

It remains unclear what Democratic lawmakers knew about the specifics of tough interrogation tactics such as waterboarding. Media reports have suggested some knew of the methods used. Former Florida Senator Bob Graham, a Democrat, said yesterday on On Point that he was not briefed on methods, despite his position as chairman of the Senate Intelligence Committee in 2002 when the interrogration programs began.

Graham said those allegations that he knew about the rough tactics by the CIA were false, and he suggested it may be appropriate for a grand jury to look into the program.

“Speaking for myself as chairman of the Senate Intelligence Committee from mid-2001 to the end of 2002, I was not briefed on these interrogation techniques,” he said.

He continued:

“…[I] am frankly very frustrated that there are these allegations made that everybody knew about it. I think the policy of the Bush administration was to try to bring as many people into the net when they were going to engage in some questionable activity in order to give them cover. In this case, I was not in the net.”

On the question of whether he favors prosecution of Bush administration officials responsible for the interrogation policies, Graham said that should be decided by the judicial branch, with a jury making the final call on whether to prosecute. He said it was appropriate to let judicial institutions weigh the evidence.

“I think they will serve us well in this instance,” he said.

The White House believes it does make a difference. On ABC’s “This Week,” Rahm Emanuel, President Obama’s chief of staff, defended the administration’s decision to release the so-called torture memos along these lines. He said the information was already in circulation, and cited by name The New York Review of Books. Emanuel was referring to, among other things, Mark Danner’s new article.

In fact, if you were looking for chapter and verse on the torture question prior to Obama’s moves last week, you could go straight to The New Yorker’s Jane Mayer, who has published some of the facts now retroactively confirmed and supplemented by the government memos. Her book, “The Dark Side,” is a scathing indictment of the whole “war on terror” legal apparatus.

By the way, one of the legal architects of the early “war on terror”  interrogation techniques is John Yoo, who has appeared on On Point. He told Tom Ashbrook, “The original vision of the US Constitution is very flexible in wartime.” And he defended his gloves-off legal views: “The way we approach war has to change because the nature of war is new.”

Detail from 2003 memo by John Yoo, a Justice Department lawyer in the Bush administration, outlining permissible interrogation techniques.

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More news over the weekend on the U.S. torture debate.

Waterboarding used 266 times on two suspects. Republicans pushing back on President Obama’s release of Bush-era memos. And Obama’s chief of staff says no one – not even the Bush architects – may face charges.

From wiretapping to detainees to the red hot CIA memos controversy, President Obama has roiled some on the left. He’s too much like Bush, they say. Meanwhile, conservatives are upset over the release of the sensitive memos.

Defenders, however, say he’s found middle ground in some rough terrain.

This Hour, On Point: The debate over President Obama’s legal moves in the terrorism fight.

You can join the conversation. What’s your view on President Obama’s legal moves on the national security front? Tell us what you think — here on this page, on Twitter, and on Facebook.

-Jane Clayson, guest host

Guests:

Ari Shapiro, Justice correspondent, National Public Radio.

Jonathan Turley, professor at George Washington University Law School. He writes a widely-read legal blog.

Robert Turner, professor at the University of Virginia School of Law. He also serves as the associate director at UVA’s Center for National Security Law.

President Bush speaks at the White House prior to signing the Military Commissions Act of 2006. From left are Attorney General Alberto Gonzales, the president, Defense Secretary Donald H. Rumsfeld, and Vice President Dick Cheney. (AP)

Former congressman and White House chief of staff Leon Panetta has been tapped by Barack Obama to be the next head of the CIA.

But a loud chorus is still looking back at what happened in the Bush administration — and charging that torture, eavesdropping, and more, demand an accounting: legal accountability, criminal charges that could go as high as Vice President Cheney — and maybe the president.

Critics call it a smear and a partisan crusade. Supporters call it a vital defense of the constitution.

It is a loaded subject. This hour, On Point: We listen to the case for prosecution — and the case against it.

You can join the conversation. Where are you on this? Was it all just part of the nasty reality of unorthodox war? Or were actual crimes committed in your name? Do you want to see Rumsfeld, Cheney, Feith, Addington, maybe even George Bush, sitting one day in a courtroom? In the dock? Or would that just tear the country apart?

-Tom Ashbrook

Guests:

Joining us from New York is Scott Horton, a contributing editor at Harper’s Magazine and a distinguished visiting professor at Hofstra Law School. His article “Justice after Bush: Prosecuting an Outlaw Administration” appeared in the December issue of Harper’s.

Also from New York, we’re joined by Andrew McCarthy, a former federal prosecutor and a regular contributor to National Review. His article on the question of Bush administration prosecutions, “The Myth of Bush’s Torture Regime,” appeared in December. As Assistant United States Attorney for the Southern District of New York, he led the prosecution against Sheik Omar Abdel Rahman in the 1993 World Trade Center bombing case.

And from Washington, we’re joined by Charles Homans, an editor at The Washington Monthly. His article on this subject, “Last Secrets of the Bush Administration: How to find out what we still don’t know,” appeared in the November-December issue.