On the torture memos

On the torture memos: I’m not a lawyer, but I think I understand the political calculations that led Obama to say that his administration would not be prosecuting individuals for their role in this loathsome episode. He understood that this could reach very far up in the Bush administration, and that beginning a legal process would be divisive and cost him some swing votes he thinks he’ll need on other issues. So the principals in the Bush administration torture regime may end up with a free pass, at least in terms of criminal prosecution. But I have three thoughts:

First, a lot of countries (including the United States) have expended considerable diplomatic effort to hold people like Serbia’s Slobodan Milosevic or Liberia’s Charles Taylor accountable for their crimes. Apparently Obama feels that this principle can be jettisoned when it might be politically expedient to do so. At a minimum, we ought to remember this incident the next time we get upset that some other country is declining to prosecute a former leader, turning a blind eye to some other ruler’s depredations (think Robert Mugabe), or cutting a deal with some warlord or terrorist leader.  Maybe they were making pragmatic calculations too, and we holier-than-thou Americans ought to be a bit less judgmental. 

Second, does our failure to prosecute open the door to other efforts to do so? A number of states (France, Canada, Belgium, Spain, etc.) have incorporated a principle of “universal jurisdiction” into their own domestic legal systems, when dealing with genocide, war crimes, or crimes against humanity (including torture). This principle can be invoked when the home country of the alleged perpetrator is "unwilling or unable to prosecute"  Earlier reports suggesting that Spanish officials were going to indict six former Bush administration officials eventually led Spain’s attorney general to say that U.S. courts would be the proper venue, but Obama has now made it clear that this isn’t going to happen. I don’t know what the practical implications might be, but if I were Dick Cheney or David Addington, I wouldn’t be planning a summer vacation in Spain.

Third, for those of you who think that power is of declining relevance in world politics and that normative and legal standards are becoming increasingly important, I’d just point out that the various officials who sanctioned these abuses would be in a lot more trouble if they came from a  weak and vulnerable state, as opposed to a global power like the United States. Not only does power corrupt, but it allows people who sanction torture to get away with it, albeit at some considerable cost to America’s image and reputation. Those reputational costs will be borne by all Americans, who ought to be furious at the crimes that were committed in their name.