Obama’s prosecutions by proxy

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 leadership.

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.

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