Irony Alert: Can Spain Abduct Bush-Era Officials and Prosecute Them for Violating International Law?

The New York Times reports that Spain has launched a criminal investigation to determine whether officials in the Bush administration violated international law by authorizing the torture of detainees at Guantanamo Bay. A source "close to the case" believes that the investigation will likely produce sufficient evidence to arrest the individuals.

Arrest warrants in this setting, however, would have at most a symbolic value. Unless the Obama administration does the unthinkable act of seizing Bush-era officials and placing them in the extradition process, Spain's criminal investigation probably will not lead to an arrest or prosecution. Because the Obama administration has already announced that it will not prosecute Bush-era officials who condoned or engaged in torture, it is highly unlikely that the President would turn over these officials to Spain (or any other country) for prosecution.

Irony Alert: Liberal and Conservative Arguments Support Spain Abducting Bush-Era Officials
Outside of the normal channels for transferring suspects to foreign countries (extradition or deportation), rendition is Spain's only option for removing suspects from the United States to face prosecution. Rendition involves the extrajudicial transfer -- or abduction -- of persons to stand trial in another jurisdiction.

Bush's use of rendition generated a lot of criticism among liberals who argued that it became a tool for outsourcing torture and secreting individuals to prolonged detention in CIA prisons. After the media and members of the Obama administration indicated that President Obama would likely continue using rendition, liberals struggled to distinguish Obama's practices from Bush's.

Many liberals argued that Obama's rendition would not present legal problems because he has ordered interrogators to comply with anti-torture laws and has directed the CIA to close its longterm detention facilities. I have have argued, by contrast, that liberal efforts to distinguish Obama's and Bush's use of rendition "elevate form over substance."

Since liberals and conservatives have defended rendition, I wonder how both political camps would contest Spain's abduction of former governmental officials to face prosecution. We may never get to hear their strained arguments, however, because Spain's criminal investigation is largely symbolic.