The Differing Views of the 'Rule of Law' in Spain and the US

Scott Horton reports
this morning that, in Spain, "prosecutors have decided to press forward
with a criminal investigation targeting former U.S. Attorney General
Alberto Gonzales and five top associates [John Yoo, Jay Bybee, David
Addington, Doug Feith and William Haynes] over their role in the
torture of five Spanish citizens held at Guantanamo." Spain not only
has the right under the Geneva Conventions and the Convention Against
Torture to prosecute foreign officials for torturing its citizens, but
it -- like the U.S. -- has the affirmative obligation to do so.
(Indeed, the Bush administration itself insisted just last year
that the U.S. the right to criminally prosecute foreign officials for
ordering acts of torture even in the absence of an accusation that any
of the victims were American).

As Hilzoy argues,
however, the primary obligation for these prosecutions lies with the
country whose officials authorized the war crimes -- the United States:

It
is a requirement of law, the law that the Constitution requires Obama,
as President, to faithfully execute. He should not outsource his
Constitutional obligations to Spain.

That the
U.S. has the legal obligation under the U.S. Constitution, our own laws
and international treaties to commence criminal investigations is simply undeniable. That is just a fact.
Yet it's hard to overstate how far away we are from fulfilling our
legal obligations to impose accountability on our own torturers and war
criminals.

The barriers to these prosecutions are numerous, but
one of the principal obstacles is that CIA Director Leon Panetta has
been emphatically demanding that there be no investigations of any
government officials whose conduct was declared legal by DOJ lawyers (i.e.,
the very individuals the Spanish are now investigating for war
crimes). And it's not surprising that Panetta has taken this position
given that at least two of his top deputies at the CIA are among those implicated, to one degree or another, in the torture regime, as John Sifton detailed earlier this month at The Daily Beast:

The
New York Times reported that Leon Panetta, the current CIA director,
has taken the position that "no one who took actions based on legal
guidance from the Department of Justice at the time should be
investigated, let alone punished." Yet a number of CIA
officials implicated in the torture program not only remain at the
highest levels of the agency, but are also advising Panetta. Panetta's attempt to suppress the issue is making Bush's policy into the Obama administration's dirty laundry.

Take Stephen Kappes. At the time of the worst torture sessions outlined in the ICRC report, Kappes
served as a senior official in the Directorate of Operations-the
operational part of the CIA that oversees paramilitary operations as
well as the high-value detention program. (The directorate of
operations is now known as the National Clandestine Service.) Panetta
has kept Kappes as deputy director of the CIA-the number two official
in the agency.

And why is it that Stephen Kappes
was made the number 2 officials at the CIA despite his being in a key
CIA position during the implementation of America's torture
regime? Because the two most important Senate Democrats on
intelligence matters -- Jay Rockefeller and Dianne Feinstein --
insisted that he be so empowered as a condition for their supporting Panetta's nomination, after both of them first demanded that Kappes actually be made CIA Director. Here's what Andrea Mitchell reported back in January:

NBC
News has learned that Senate Democrats -- including Dianne Feinstein
and Jay Rockefeller, who are the incoming and outgoing Intelligence
chairmen -- have privately recommended a career CIA officer to head the
agency.

Democratic sources indicate that both have recommended deputy CIA Director Steve Kappes, a veteran CIA intelligence officer who is widely credited with getting the Libyans to give up their nuclear program.

Just
to give a sense for how our political class thinks about torture, here
is what Mitchell appended to the end of her report: "One potential downside for Kappes: Like former counter-terror chief John Brennan, some critics says [sic]
he had line authority over controversial decisions involving
interrogation and detention." So Kappes' connection to the CIA's
torture program was a "potential downside" to his becoming
CIA Director. A potential downside. Once Obama chose Panetta rather than Kappes, Rockefeller and Feinstein agreed to support Panetta's nomination only once they were given assurances that Kappes would become Panetta's deputy.

This
Thursday will be a very significant test for how much influence the
anti-accountability camp exerts within the Obama administration and for
how serious Obama's pledges of transparency were, as that day is the
latest deadline for the Obama DOJ either to release the three key OLC torture-authorizing memos, release them in heavily redacted form, or refuse to release them at all. It has been widely reported that a "war" has broken out within the Obama administration over their release, with key Bush-era intelligence officials -- such as Obama's top counter-terrorism aide John Brennan
and ex-CIA Director Michael Hayden -- demanding the ongoing concealment
of the memos. Those torture memos are reputed to be among the most
vivid torture documents of the Bush era, and thus will almost certainly
fuel the flames of investigations and prosecution -- both here and
internationally. That is what has prompted the "war" over their
disclosure. It's hardly a surprise that if you empower the very people
most connected to the Bush CIA, there will be substantial forces
blocking any attempt to bring accountability under the rule of law for
the crimes that were committed.

Just think about what all this
means: not only are we failing to investigate or indict those who
authorized torture, but we haven't even reached the point yet where
we've decided that these crimes are bad enough that those implicated
ought to be barred from serving in the highest positions in our
Government. While Spain proceeds to fulfill the Obama administration's
duties to investigate and prosecute our war criminals, some of those
most implicated remain in positions of high authority within our own
intelligence and counter-terrorism agencies -- thanks to Senate
Democrats such as Feinstein and Rockefeller.

Our political class has simply never come to terms with how severe are these war crimes and how acquiescent to and outright supportive so many officials from both parties -- and so many of our media stars -- were. That's why huge numbers, arguably majorities,
of Americans want criminal investigations to commence, but our
political class remains virtually unified against them --
notwithstanding that they are legally required --
because, as has been conclusively proven over and over, the last thing
our political and media elites care about is the "rule of law." That
will become more apparent as other countries, such as Spain,
demonstrate that they actually take things like that seriously.

* * * * *

On
a related note, Rachel Maddow last night potently eviscerated Barack
Obama for his attempts to deny Bagram detainees any rights of any kind,
and she and Newsweek's Michael Isikoff then discussed the significance of Thursday's deadline for the release of the OLC torture memos:

UPDATE: In comments, Jim White highlights
a fact from Horton's story that I intended but neglected to
mention: the Spanish "advised the Americans that they would suspend
their investigation if at any point the United States were to undertake an investigation of its own into these matters." As White points out, that is how war crimes investigations are intended to proceed under numerous treaty provisions by which the U.S. has bound itself:
namely, the country whose officials commit the crimes have the primary
obligation to investigate and hold the criminals accountable. But
other treaty signatories are not only entitled, but required, to commence such proceedings if the violating country refuses or otherwise fails to do so.

Thus,
the only way to object to what Spain is doing here is if
one: (a) suffers from total ignorance of the basic provisions of
Geneva Conventions and the Convention Against Torture; (b) believes
that the U.S. has no obligation to abide by its treaties even though the U.S. Constitution provides
that such treaties are "the supreme law of the land"; and/or
(c) believes that the U.S. need not abide by rules we impose on other
countries, such as when we prosecuted other countries' leaders for war
crimes in the past. None of those is a particularly noble excuse.