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 in the Democratic Party, but it risks grave long-term damage to America. 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. Obama has played to the crowd politically, but the principles underlying his policies are opaque and subject to change. This hardly constitutes leadership.
Despite uncertainties here, developments overseas proceed apace. Spanish Magistrate Baltasar Garzon recently opened a formal probe of six Bush administration lawyers for their roles in advising on interrogation techniques. Garzon did so over the objections of Spain’s attorney general. Under Spain’s inquisitorial judicial system, Garzon is essentially unaccountable, whatever the views of the elected government.
Asked repeatedly about Garzon’s investigation, the State Department has said only that it is a matter for the Spanish judicial system. Attorney General Eric Holder recently 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.”
This is deeply troubling. Obama appears to be following the John Ehrlichman approach, letting the US lawyers “twist slowly, slowly in the wind.” Garzon’s is far from a run-of-the-mill police investigation in which a US tourist abroad runs afoul of some local ordinance. From what appears publicly, US consular officials would do more for the tourist than Obama is doing for the former Bush officials.
If Obama is attempting to end the Garzon investigation, it’s one of our best-kept secrets in decades.
Although the six lawyers are in a precarious position, they’re only intermediate targets. The real targets are President George W. Bush and his most senior advisers, and the real aim is to intimidate US officials into refraining from making hard but necessary decisions to protect our national security.
The question here isn’t 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 thinks our Justice Department should launch criminal probes into their actions.
Instead, the critical question is who judges the official actions that US 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 US position is to insist that our Constitution alone governs any review of our officials’ conduct.
This issue isn’t abstract. UN Special Rapporteur Manfred Nowak has said that the other 145 states party to the Convention Against Torture must launch their own criminal probes if America doesn’t.
Behind-the-scenes diplomacy is often the best, and sometimes the only, way to accomplish important policy objectives; one hopes that such efforts are under way. But in this case, firm and public statements are necessary to stop the pending Spanish inquisition and to dissuade others from proceeding. Obama must abandon his Ehrlichman-like policy and say unequivocally that Spain should take whatever steps are necessary to stop Garzon.
Otherwise, in four or eight years, future second-guessers will decide, say, that US drone attacks in Pakistan constitute war crimes, and that ex-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.
Will Obama’s successor vigorously dispute the legitimacy of foreign prosecutions or 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 Bolton, a former US ambassador to the UN, is author of “Surrender Is Not an Option: Defending America at the United Nations and Abroad.” From The Washington Post.