Would Prosecuting Yoo Contradict DOJ's Stance in Torture Lawsuit?

A few days ago, President Obama indicated that his administration would not pursue criminal charges against Bush-era officials responsible for torturing terrorism suspects. Now, he could be changing his mind:

Obama said it would be up to his attorney general to determine whether "those who formulated those legal decisions" behind the interrogation methods should be prosecuted. The methods, described in Bush-era memos Obama released last Thursday, included such grim and demeaning tactics as slamming detainees against walls and subjecting them to simulated drowning.

He said anew that CIA operatives who did the interrogating should not be charged with crimes because they thought they were following the law.

I smell some major nuance: The "torturers" are immune, but the lawyers and commanders could face prosecution. I am not sure that anything will come from this. The administration is already defending John Yoo, author of the so-called "torture" against a torture lawsuit. Prosecuting him for similar conduct would seem contradictory. Perhaps he is holding out the possibility of prosecutions because someone said it is inappropriate for a president to tell the A.G. whom to prosecute.

PS: I have not been able to locate DOJ's motion to dismiss the lawsuit against Yoo online. If you have it, could your provide a link? Thanks.

Also, I have been missing in action for the last few days, because I need to complete some professional writing. Thanks for reading!

No Prosecution of the Bush Six in the United States

Earlier today, Dissenting Justice published: "No Prosecution of the "Bush Six" in Spain." The article discusses a rumored decision by the Attorney General of Spain to decline pursuing prosecuting Bush administration officials who authorized the torture of terrorism suspects. If Spain decides to prosecute the officials, the decision largely have symbolic meaning because the Obama administration has already taken a position disfavoring prosecution of Bush-era officials who either authorized or committed torture.

Today, the Obama administration released the controversial "torture memos" -- or legal documents prepared by Department of Justice attorneys that justify the use of torture by United States interrogators. This issue created domestic and international outrage during the Bush administration, and it caused many self-identified progressives in the Democratic Party to align with Obama over Hillary Clinton during the primaries.

Obama, progressives argued, would dramatically improve the image of the United States in the "world community" because he would implement their understanding of civil liberty, which includes vigorous opposition to governmental secrecy, the abolition of torture, extension of habeas rights to all terrorism detainees, an absolute prohibition of indefinite detention, and opposition to rendition. Obama, however, has failed to meet the expectations of civil libertarians on most of these issues.

Today, President Obama made new statements regarding the potential prosecution of Bush-era officials, which will likely generate additional criticism among progressives. President Obama's comments reiterate his stance disfavoring the prosecution of Bush administration officials. An Associated Press article analyzes Obama's new statements opposing prosecution. Here is a clip from that article:

President Barack Obama absolved CIA officers from prosecution for harsh, painful interrogation of terror suspects Thursday, even as his administration released Bush-era memos graphically detailing — and authorizing — such grim tactics as slamming detainees against walls, waterboarding them and keeping them naked and cold for long periods.

Human rights groups and many Obama officials have condemned such methods as torture. Bush officials have vigorously disagreed.

In releasing the documents, the most comprehensive accounting yet of interrogation methods that were among the Bush administrations most closely guarded secrets, Obama said he wanted to move beyond "a dark and painful chapter in our history. . . ."

Although civil liberties advocates believe President Obama should not have absolved Bush administration officials, the President argues that:

"Nothing will be gained by spending our time and energy laying blame for the past."

Attorney General Eric Holder made similar comments:

"It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department. . . ."

Holder also said that the government would provide legal counsel for Bush-era officials who face legal proceedings (either before a court or Congress) related to the issue of torture. Holder also stated that the government would pay for any monetary judgments against these officials.

Cynical Conclusion
With all of these dramatic "changes" going on in the nation, I have decided to re-post a "blast from the past": Progressives Awaken from Obama-Vegetative State.

No Prosecution of the "Bush Six" in Spain

Despite earlier reports, it now appears unlikely that the "Bush Six" will face prosecution in Spain for allegedly violating international human rights law. In March, a human rights attorney requested that Spanish Judge Baltasar Garzon consider filing charges against officials from the Bush administration who authorized the use of torture against terrorism detainees. Judge Garzon requested advice from Attorney General Candido Conde-Pumpido. Today, Conde-Pumpido stated that any prosecution of the individuals should take place in the United States:

"If there is a reason to file a complaint against these people, it should be done before local courts with jurisdiction, in other words in the United States . . . ."

Copnde-Pumpido also disputed whether the individuals violated international law by providing a legal justification for torture, rather than actually committing torture:

"If one is dealing with a crime of mistreatment of prisoners of war, the complaint should go against those who physically carried it out. . . ."

Many Liberals Want Prosecutions, Obama and Panetta Do Not
Many liberals have called upon the Obama administration to pursue criminal charges against Bush-era officials who authorized torture. Both President Obama and CIA Director Leon Panetta, however, have firmly stated their opposition these demands.

Because the Obama administration has already stated its opposition to torture prosecutions, the Spanish criminal investigation is largely symbolic. The prospect of criminal charges against Bush-era officials, nevertheless, caused jubilation among many liberals.

Spain Has Very Few Options for Transferring the Bush Six Out of the United States
Because the Obama administration opposes prosecution of the Bush Six, the United States probably would not grant any requests for extradition from Spain. Although Spain could pursue extradition in another jurisdiction if the Bush Six traveled outside of the United States, it remains unclear whether another country would grant extradition requests over the objection of the Obama administration.

Ironically, Spain could presumably use rendition and abduct the Bush Six to "justice." This option, however, is purely theoretical -- i.e., it would never happen -- despite the fact that conservatives and apparently many liberals do not disagree with government-sponsored international kidnappings.

Obama Administration in Contact With Spain Over the Investigation
Earlier this week, human rights lawyer Scott Horton published an article in the Daily Beast which states that indictments of the Bush Six are forthcoming. If Horton had accurate information when he wrote his article, Conde-Pumpido apprently stepped in and altered the course of events. Although the court could still issue indictments, this path seems unlikely given Conde-Pumpido's statements.

Horton's article also states that the Obama administration has remained in close contact with Spanish officials regarding the criminal investigation. It is unclear, however, whether the United States pressed Spain not to issue indictments or to pursue prosecutions.

The so-called Bush Six includes: former Attorney General Alberto Gonzales; former Undersecretary of Defense Douglas Feith; former Vice President Dick Cheney's Chief of Staff, David Addington; former Department of Justice attorneys John Yoo and Jay S. Bybee; and Pentagon lawyer William Haynes.

Consider This: The Politics
In the absence of overwhelming domestic public support for the prosecution of senior governmental officials in a foreign court, it seems highly unlikely that President Obama (or any other president) would consent to extradition. If substantial public support for prosecution existed, then the prosecutions would take place domestically.

President Obama has probably decided that prosecuting the Bush Six or transferring the group to another country for trial would be too polarizing and politically damaging and that a substantial part of the public would not favor such a course of conduct. Also, it is possible that President Obama does not want to establish a precedent that his sucessor could use against him and members of his staff in a display of brutal partisan politics. In sum, Obama is doing what is politically safe. What president would not?