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President Obama’s passivity before the threatened foreign prosecution of Bush
administration officials achieves by inaction what he fears doing directly. This
may be smart politics within the Democratic Party, but it risks grave long-term
damage to the United States. Ironically, it could also come back to bite future
Obama administration alumni, including the president, for their current policies
in Iraq, Afghanistan and elsewhere.
Obama has taken ambiguous, and flatly contradictory, positions on whether to
prosecute Bush administration advisers and decision makers involved in “harsh
interrogation techniques.” Although he immunized intelligence operatives who
conducted the interrogations, morale at the CIA is at record lows. The president
has played to the crowd politically, but the principles underlying his policies
are opaque and continually subject to change. This hardly constitutes
Despite uncertainties here, developments overseas proceed apace. Spanish
Magistrate Baltasar Garzón opened a formal investigation last week of six Bush
administration lawyers for their roles in advising on interrogation techniques.
Garzón did so over the objections of Spain’s attorney general, as he did in 1998
in proceeding against former Chilean president Augusto Pinochet. Under Spain’s
inquisitorial judicial system, Garzón is essentially unaccountable, whatever the
views of Spain’s elected government.
Asked repeatedly about Garzón’s investigation, the State Department has said
only that it is a matter for the Spanish judicial system. Last week, Attorney
General Eric Holder went further, implying that the Obama administration could
cooperate. “Obviously, we would look at any request that would come from a court
in any country and see how and whether we should comply with it,” Holder said.
This is deeply troubling. Obama appears to be following the John Ehrlichman
approach, letting the U.S. lawyers “twist slowly, slowly in the wind.” Garzón’s
is far from a run-of-the-mill police investigation in which an American tourist
abroad runs afoul of some local ordinance. Indeed, from what appears publicly,
U.S. consular officials would do more for the tourist than Obama is doing for
the former Bush officials. If Obama is attempting to end the Garzón
investigation, it is one of our best-kept secrets in decades.
Although the six lawyers are in a precarious position, they are only
intermediate targets. The real targets are President Bush and his most senior
advisers, and the real aim is to intimidate U.S. officials into refraining from
making hard but necessary decisions to protect our national security. There is
never a shortage of second-guessers about U.S. foreign policy. For example,
former U.N. high commissioner for human rights Mary Robinson said during the
NATO-Serbia war over Kosovo that “civilian casualties are human rights victims.”
She asked, “If it is not possible to ascertain whether civilian buses are on
bridges, should those bridges be blown?”
The question here is not whether one agrees or disagrees with the advice the
lawyers gave, or with their superiors’ operative decisions concerning
interrogation techniques. Nor is it even whether one believes our Justice
Department should launch criminal investigations into their actions. (I believe
strongly that criminalizing policy disagreements is both inappropriate and
Instead, the critical question is who judges the official actions that U.S.
personnel took while holding government office. Is it our own executive and
judicial branches, within our constitutional structures and protections, or some
unaccountable foreign or international magistrate in some unaccountable distant
court? The proper U.S. position is to insist that our Constitution alone governs
any review of our officials’ conduct.
This issue is not abstract. For the six lawyers, it has immediate effects on
their lives, careers and families. Moreover, whether or not Obama has decided
against prosecuting CIA agents, his decision in no way binds the creative mind
of Señor Garzón, a man who has never shied from spotlights. Indeed, U.N. Special
Rapporteur Manfred Nowak has already said that the other 145 states party to the
Convention Against Torture must launch their own criminal investigations if the
United States does not.
Behind-the-scenes diplomacy is often the best, and sometimes the only, way to
accomplish important policy objectives, and one hopes that such efforts are
underway. But in this case, firm and public statements are necessary to stop the
pending Spanish inquisition and to dissuade others from proceeding. The
president must abandon his Ehrlichman-like policy and pronounce unequivocally
that Spain should take whatever steps are necessary to stop Garzón.
Otherwise, in four or eight years, like Mary Robinson before them, future
second-guessers will decide, say, that U.S. drone attacks in Pakistan constitute
war crimes, and that former commander in chief Obama must be hauled before the
bar of some mini-state to stand trial. After all, his decisions involve risking
civilian deaths, not just shoving terrorists into a wall (and no protective neck
Will President Obama’s successor vigorously dispute the legitimacy of foreign
prosecutions, or will she follow the current Obama policy and let the foreign
investigation proceed, perhaps even to trial? Obama and his advisers should
think carefully about that second scenario–now.
John R. Bolton is a senior fellow at AEI.
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