There’s not a liberal America and a conservative America; there’s the United States of America…. We are one people, all of us pledging allegiance to the stars and stripes, all of us defending the United States of America.
- Senatorial candidate Barack Obama, July 27, 2004.
That was then. In office, however, the Obama administration has shown a dangerous and disturbing disinclination to speak up for those who have defended the United States when they in turn need defending. Partisan politics seem to take precedence.
As mentioned below, a one-time terrorist who served seven years in Spanish prisons has filed charges against former Bush administration lawyers: Alberto Gonzeles, Doug Feith, David Addington, Jay Bybee, William Haynes, and John Yoo. The legendary super-activist Spanish magistrate Baltasar Garzon has accepted jurisdiction and referred the case to prosecutors to decide whether to proceed with a case.
The episode is astonishing in many ways. As Doug Feith noted in an oped in the Wall Street Journal on April 3,
The allegation is not that any of us tortured anyone. And it is not that any of us even directed anyone to commit torture. The allegation is that, when we advised President George W. Bush on the Geneva Conventions and detainee interrogations, our interpretations were wrong — in the view of the disapproving Spaniards. According to the complaint, these wrong interpretations encouraged the president to make decisions that led to torture.
The Spanish magistrate apparently believes that it can be a crime for American officials to offer the wrong kind of advice to a president of the United States and, furthermore, it can be a crime punishable by a Spanish court. This is a national insult with harmful implications.
The sub-headline on Feith’s essay wittily summed up the legal view behind the case: “What next? Prosecutions for bad advice on global warming?”
If the case is absurd, however, it is no joke. Spain is a NATO ally and a member nation of the EU. This case could have life-altering implications for the six lawyers involved.
You might expect therefore the United States government to express itself vigorously on the impropriety – to put it mildly – of these proceedings. If so, you’d be disappointed. From the March 31 State Department daily briefing:
Q: A Spanish court has started a criminal investigation into allegations that six former Bush officials violated international law by creating legal justification of torture in Guantanamo. I wanted to know if you had had any contact with the Spanish Foreign Ministry or there is any official position right now on that.
MR. DUGUID: I’m not aware of any contact with the Spanish Foreign Ministry on this. It’s a matter in the Spanish courts, as I’m given to understand. I don’t have a comment for you on it at this time. The Obama Administration’s position on the matters that are under discussion, I think are quite clear.
Alas, the Obama administration’s position on this matter is anything but clear. George Stephanopoulos put the question directly to President-elect Obama in January:
PRESIDENT-ELECT BARACK OBAMA: “We’re still evaluating how we’re going to approach the whole issue of interrogations, detentions, and so forth. And obviously we’re going to look at past practices. And I don’t believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering up.
GEORGE STEPHANOPOULOS: “So no 9/11 Commission with independent seeking of power?”
OBAMA: “Well we have not made any final decisions but my instinct is for us to focus on how do we make sure that moving forward, we are doing the right thing. That doesn’t mean that if somebody has blatantly broken the law, that they are above the law. But my orientation’s going to be to move forward,” Obama said.
STEPHANOPOULOS: “So let me just press that one more time. You’re not ruling out prosecution, but will you tell your Justice Department to investigate these cases and follow the evidence where it leads?”
OBAMA: What I — I think my general view when it comes to my attorney general is that he’s the people’s lawyer. Eric Holder’s been nominated. His job is to uphold the Constitution and look after the interests of the American people. Not be swayed by my day-to-day politics. So ultimately, he’s going to be making some calls. But my general belief is that when it comes to national security, what we have to focus on is getting things right in the future as opposed to looking at what we got wrong in the past.
That sounds like President Obama discountenances actions like those of the Spanish court. But of course that is not what the president said. He laid down a general preference, not a policy position. He spoke about career staff, not political appointees. And his words contemplated only action inside the US, when it was always foreseeable that legal action was most likely to originate outside the US under pretensions of “universal jurisdiction” by European courts.
It seems impossible that any US administration would surrender entirely to such claims. But there is some leeway as to how forcefully an administration responds – and how soon. The administration has the option of deliberating over this matter very slowly, exposing the six former officials (and who knows how many others) to legal jeopardy and personal expense for months or years.
Any flirtation with such an option would raise two deadly serious concerns.
The first concern is strategic. As one expert on the law of national security remarked to NewMajority:
The whole point here by the human rights crowd and others on the left stirring this up is to … punish [past actions by these former officials] to deter future govt officials. It is a vicious asymmetrical attack on the US Government.
It’s not only Bush administration officials who will have to worry from now on that their actions – and not just their actions, but even their opinions as stated in what were assumed to be confidential internal documents – may expose them to unpredictable legal risk. Other administrations too will face difficult decisions. To fail to act fully and immediately to defend the 6 American lawyers in this matter will hand a weapon to anti-American ideologues and outright enemies of the United States.
The second concern is political. As I said, I have to believe that the Obama administration will act sooner or later to defend the 6 from this action. But a great deal hinges on the gap between “sooner” and “later.”
In that 2004 speech quoted above, then-candidate Obama eloquently appealed for a political leadership that elevated national concerns above party passions. This case puts the sincerity of that call to the test. The presidency is bigger than any president, and the US government endures after any particular administration has passed from the scene. It would be a horrendous scandal if an administration of the moment compromised the international integrity of the US government to settle an ideological score against domestic political opponents.
15 responses so far
1 nealjking // Apr 5, 2009 at 6:16 am
The Nuremberg trials established the principle that “I was just following orders” is not a valid defense against human-rights offenses.
In that case, why should the principle that “I was just issuing orders” be accepted as a valid defense for torture?
2 ottovbvs // Apr 5, 2009 at 6:48 am
“The whole point here by the human rights crowd “
As one expert on the law of national security (who was this… David Addington)
…….No we don’t want anything to do with the human rights crowd. Pardon me… I thought the defense of human rights was central to our belief in freedom and democracy. David, you’re going down a dangerous road here….The problem with this as it was with many actions by the Bush admin both at home and abroad was that they either contravened US or international law or came very close to it. Torture is illegal under US law, basically these guys wrote a load of legal opinions to justify it on grounds of presidential power or force majeure and then subsequently authorized its implementation. Their legal shakiness was demonstrated by subsequent failures to stand up to legal scrutiny and/or the fact that many of them were subsequently withdrawn. These guys created this legal exposure for themselves I’m afraid.
3 sinz54 // Apr 5, 2009 at 7:13 am
If at all possible, the issue of any alleged past wrongdoing should be addressed in a way that does not divide America at this troubled time. I can’t think of anything that would infuriate the GOP and conservatives more, than to see some of their heroes like Cheney hauled before some international tribunal. That would probably unify them and inflame them to work for GOP gains in 2010 and 2012 more than anything else I can imagine.
For the liberals on this blog and elsewhere, it’s really time to put up or shut up: Was all that Obama talk about “post-partisanship” and “changing the tone in Washington” just thrown in there to get votes?
Because it’s things like this and the attitude I’ve seen from liberals since Obama’s inauguration that strongly suggests that it is. Instead of “post-partisanship,” what we’ve been seeing is telling us conservatives to just shut up and go away–or even worse, go to jail.
Well, we’re not going to go away.
You can either have us as a “loyal opposition”–or as bitter enemies determined to destroy you in revenge. (Which will happen someday, given how the political pendulum swings in America.)
You decide.
4 midcon // Apr 5, 2009 at 8:56 am
It seem premature to be critical of what the new administration has or has not done since the ink is barely dry on the start of the criminal investigation. These things tend to be long and drawn out and I would say those former officials are in no immediate peril.
Criminal investigations along with driving to the supermarket and indeed getting out of bed in the morning tend to have life altering implications. So what? That’s a bit too much drama don’t you think?
Lastly, Spain’s membership in NATO and EU is offered as evidence that this is no joke and that the investigation could alter the investigatees life. Not sure I see the relationship you are trying to point out, but NATO is a net cost to the U.S. At one time, we were going to defend Europe and fight the Soviets at the border of Eastern and Western Europe. NATO is now looking for a mission and there is little agreement on what that is. So maybe we don’t need a NATO? And the last I heard we were not a member of the EU, so that connection is a bit loose.
There are two prime questions that this investigation should surface in the Administration. The first is, under what conditions are U.S. citizens subject to foreign law? The second is do government officials (career and appointed) receive protection (and if so how) when they are performing their official responsibilities as designated agents of the U.S. Government.
There is whole lot of attorney fees to made before any of those gentlemen have to worry about being extradited. Really, there are bigger fish to fry at the moment. Maybe Spain has nothing better to do at the moment, but I know the U.S. has.
5 krove // Apr 5, 2009 at 1:06 pm
Sinz, The Republicans hounded Clinton unmercilessly for a Blow Job of all things. Are we to just forget that the highest people in office have admitted that they conspired together in the Oval office to torture? Cheney has admitted it twice on national TV ! Are we a country of laws or not? That is the question. The answer seems to be as when Nixon did wrong, only when Democrats do it.
6 krove // Apr 5, 2009 at 1:22 pm
WASHINGTON, Nov. 29 – The International Committee of the Red Cross has charged in confidential reports to the United States government that the American military has intentionally used psychological and sometimes physical coercion “tantamount to torture” on prisoners at Guantnamo Bay, Cuba.
The finding that the handling of prisoners detained and interrogated at Guantnamo amounted to torture came after a visit by a Red Cross inspection team that spent most of last June in Guantnamo.
7 krove // Apr 5, 2009 at 1:23 pm
We have always known – or should have – that the UN Convention Against Torture (signed by Ronald Reagan) leaves NO EXCUSES for the use of use of torture. None.
No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture. An order from a superior officer or a public authority may not be invoked as a justification of torture.M
8 krove // Apr 5, 2009 at 1:26 pm
I tuly hope this comes to pass.
On Thursday, House Judiciary Committee Chairman John Conyers quietly released the final draft of an extensive report he first unveiled in January documenting the Bush administrations “unreviewable war powers” and the possible crimes committed in implementing those policies.
In order to determine whether Bush officials broke laws, Conyers has recommended that Attorney General Eric Holder appoint a special prosecutor to launch a criminal inquiry to investigate, among other things, whether “enhanced interrogation techniques” used against alleged terrorist detainees violated international and federal laws against torture.
9 petty boozshwa // Apr 5, 2009 at 2:35 pm
I recall that Spain has, in the past, offered Senor Fidel Castro a retirement home in Galatia if he would like to unburden himself of his heroic duties in Cuba. Surely if the Spanish government feels like evaluating our political process, there are probably some sympathetic judges in South Florida that would listen to a similar complaint against the various Spanish government ministers that have formulated their Cuba policy. Making travel to the US more difficult for their ministers would probably be more onerous than any cloud of warrents facing our officials in Europe. I recommend a legal foundation test the proposition.
10 nealjking // Apr 5, 2009 at 5:25 pm
petty: What international laws would the Spanish ministers have broken by inviting Castro to retire in Galatia? Or which US citizens would be harmed, and how?
sinz54:
- I think you may be over-estimating Cheney as a hero, even of Republicans, when his approval rating is about 11%. I think the closer equivalent would be “Darth Vader.”
- “Post-partisanship” was always more a matter of tone & civility than a watering-down of policies. In any case, the GOP’s idea of bi-partisan has always been “GOP way or the highway”, so it doesn’t work well when the GOP is the “little old party”.
11 A. Wilson // Apr 5, 2009 at 8:08 pm
It all depends on one’s definition of “torture”. It seems that everyone has their own definition depending on their particular position on the Iraq/Afghan wars or President Bush.
I don’t think it’s like we were routinely pulling out fingernails, or branding with hot irons. It seems that the supposed mother of all horrific techniques — waterboarding — was only performed on a handful of high-value potential information sources. And even that is not so much torture, as it is simply scary as hell. Our own troops train with it.
If we can’t even step up our interrogation protocol a level for a group that just got through murdering what could very well have been tens of thousands of completely innocent Americans, a group that openly seeks to acquire tactics and weapons in order to kill as many of us as possible in the future, well then we’ve lost all semblance of common sense.
Seems now that we can’t even advocate doing so, or risk being thrown to the worldly wolves.
I whole-heartedly agree with David Frum on this. Reasonable people can easily disagree with the methods used at Gitmo or wherever against an un-uniformed enemy that is closer to animal than human, and for the President of the United States to be so mushy and obtuse on this is not only enraging and embarrassing — it’s dangerous.
I’m just wondering if David is having any second thoughts since he wrote the paragraph below, especially given the perverted possibility that Obama’s ramblings may have even encouraged foreign mushy malcontents to go after HIM next. Remember — Axis of Evil??? How much murder and mayhem did THAT foment? Incalculable, according to the “World Court”.
“Ms. Palin’s experience in government makes Barack Obama look like George C. Marshall. She served two terms on the city council of Wasilla, Alaska, population 9,000. She served two terms as mayor. In November, 2006, she was elected governor of the state, a job she has held for a little more than 18 months. She has zero foreign policy experience, and no record on national security issues.”
http://www.nationalpost.com/nationalpost/story.html?id=756704
I know one thing. Sarah Palin would have instinctively responded to these Spaniard weasels properly — telling them swiftly and in no uncertain terms to butt the hell out of internal American affairs, thank you very much. And BTW, thanks for cutting and running in Iraq, you know, that former dictatorship turned democracy?
Now John McCain ….. unfortunately I don’t have the same confidence in what his reaction would be.
12 Egli Ha // Apr 6, 2009 at 12:35 am
I agree with David–the torture lawyers should not be tried by a Spanish court.
In fact, they should not be tried at all.
They should be killed WITHOUT trials.
13 krove // Apr 6, 2009 at 5:20 am
The GOP way with transparency, NOT
Senate Republicans are now privately threatening to derail the confirmation of key Obama administration nominees for top legal positions by linking the votes to suppressing critical torture memos from the Bush era. A reliable Justice Department source advises me that Senate Republicans are planning to “go nuclear” over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public. The source says these threats are the principal reason for the Obama administrations abrupt pullback last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administrations darkest secrets in exchange for letting these nominations go forward.
14 ottovbvs // Apr 6, 2009 at 6:33 am
“A. Wilson
8:08 PMIt all depends on one’s definition of “torture”. It seems that everyone has their own definition depending on their particular position on the Iraq/Afghan wars or President Bush.”
…..Not really. Waterboarding is and always has been regarded as torture. But it didn’t stop there. There were many other elements if you’ve read summaries of the Red Cross report including one that involved screwing people into little boxes which seems particularly heinous to me. As some posters have mentioned, there are stories circulating that the GOP is using some senate confirmations as bargaining counters to keep some of these torture memos secret. I’ve no idea whether these are true but if they are, they tell me two things. Firstly, the contents of these memos must be pretty bad and secondly GOP senators are losing their political savvy. Getting into a fight to try to keep torture memos secret doesn’t seem a tactic that’s likely to yield political benefits. At the end of the day all this arose because the president and his advisors essentiallly claimed he was above US and international law. This is so preposterous a claim I just don’t see how anyone who calls himself a conservative can support it. Finally even the admin to some extent realized just how indefensible it was and backed away from part but not all of it. This as I mentioned below is going to be playing out for years.
15 Egli Ha // Apr 6, 2009 at 9:08 am
So now Republican senators are threatening to filibuster President Obama’s nominees.
Correct me if I’m wrong, but didn’t the Senate’s “Gang of Fourteen” make a compromise on this? As I recall, the deal was: the minority will refrain from filibustering nominees, in exchange for which, the majority would refrain from the “nuclear option”–from changing the Senate’s rules of debate to disallow filibusters. Republicans seem to think this compromise no longer applies now that they are the minority. OK, then, toss the compromise and let’s bring out the nuclear option again.
My advice to Democrats would be: don’t threaten, don’t negotiate. Just introduce a motion to change the rules of debate (nuclear option), and vote on it before the Republicans realize what’s happening. Then let them huff and puff until they burst.
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