Obama's Dangerous Abdication

There’s not a liberal America and a conservative America; there's the United States of America…. We are one people, all of us pledging allegiance to the stars and stripes, all of us defending the United States of America.

- Senatorial candidate Barack Obama, July 27, 2004.

That was then. In office, however, the Obama administration has shown a dangerous and disturbing disinclination to speak up for those who have defended the United States when they in turn need defending. Partisan politics seem to take precedence.

As mentioned below, a one-time terrorist who served seven years in Spanish prisons has filed charges against former Bush administration lawyers: Alberto Gonzeles, Doug Feith, David Addington, Jay Bybee, William Haynes, and John Yoo. The legendary super-activist Spanish magistrate Baltasar Garzon has accepted jurisdiction and referred the case to prosecutors to decide whether to proceed with a case.

The episode is astonishing in many ways. As Doug Feith noted in an oped in the Wall Street Journal on April 3,

The allegation is not that any of us tortured anyone. And it is not that any of us even directed anyone to commit torture. The allegation is that, when we advised President George W. Bush on the Geneva Conventions and detainee interrogations, our interpretations were wrong -- in the view of the disapproving Spaniards. According to the complaint, these wrong interpretations encouraged the president to make decisions that led to torture.

The Spanish magistrate apparently believes that it can be a crime for American officials to offer the wrong kind of advice to a president of the United States and, furthermore, it can be a crime punishable by a Spanish court. This is a national insult with harmful implications.

The sub-headline on Feith's essay wittily summed up the legal view behind the case: "What next? Prosecutions for bad advice on global warming?"

If the case is absurd, however, it is no joke. Spain is a NATO ally and a member nation of the EU. This case could have life-altering implications for the six lawyers involved.

You might expect therefore the United States government to express itself vigorously on the impropriety – to put it mildly – of these proceedings. If so, you’d be disappointed. From the March 31 State Department daily briefing:

Q: A Spanish court has started a criminal investigation into allegations that six former Bush officials violated international law by creating legal justification of torture in Guantanamo. I wanted to know if you had had any contact with the Spanish Foreign Ministry or there is any official position right now on that.

MR. DUGUID: I’m not aware of any contact with the Spanish Foreign Ministry on this. It’s a matter in the Spanish courts, as I’m given to understand. I don’t have a comment for you on it at this time. The Obama Administration’s position on the matters that are under discussion, I think are quite clear.

Alas, the Obama administration’s position on this matter is anything but clear. George Stephanopoulos put the question directly to President-elect Obama in January:

PRESIDENT-ELECT BARACK OBAMA: "We're still evaluating how we're going to approach the whole issue of interrogations, detentions, and so forth. And obviously we're going to look at past practices. And I don't believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders and lawyering up.

GEORGE STEPHANOPOULOS: "So no 9/11 Commission with independent seeking of power?"

OBAMA: "Well we have not made any final decisions but my instinct is for us to focus on how do we make sure that moving forward, we are doing the right thing. That doesn't mean that if somebody has blatantly broken the law, that they are above the law. But my orientation's going to be to move forward," Obama said.

STEPHANOPOULOS: "So let me just press that one more time. You're not ruling out prosecution, but will you tell your Justice Department to investigate these cases and follow the evidence where it leads?"
OBAMA: What I -- I think my general view when it comes to my attorney general is that he's the people's lawyer. Eric Holder's been nominated. His job is to uphold the Constitution and look after the interests of the American people. Not be swayed by my day-to-day politics. So ultimately, he's going to be making some calls. But my general belief is that when it comes to national security, what we have to focus on is getting things right in the future as opposed to looking at what we got wrong in the past.

That sounds like President Obama discountenances actions like those of the Spanish court. But of course that is not what the president said. He laid down a general preference, not a policy position. He spoke about career staff, not political appointees. And his words contemplated only action inside the US, when it was always foreseeable that legal action was most likely to originate outside the US under pretensions of “universal jurisdiction” by European courts.

It seems impossible that any US administration would surrender entirely to such claims. But there is some leeway as to how forcefully an administration responds – and how soon. The administration has the option of deliberating over this matter very slowly, exposing the six former officials (and who knows how many others) to legal jeopardy and personal expense for months or years.

Any flirtation with such an option would raise two deadly serious concerns.

The first concern is strategic. As one expert on the law of national security remarked to NewMajority:

The whole point here by the human rights crowd and others on the left stirring this up is to … punish [past actions by these former officials] to deter future govt officials. It is a vicious asymmetrical attack on the US Government.

It’s not only Bush administration officials who will have to worry from now on that their actions – and not just their actions, but even their opinions as stated in what were assumed to be confidential internal documents – may expose them to unpredictable legal risk. Other administrations too will face difficult decisions. To fail to act fully and immediately to defend the 6 American lawyers in this matter will hand a weapon to anti-American ideologues and outright enemies of the United States.

The second concern is political. As I said, I have to believe that the Obama administration will act sooner or later to defend the 6 from this action. But a great deal hinges on the gap between “sooner” and “later.”

In that 2004 speech quoted above, then-candidate Obama eloquently appealed for a political leadership that elevated national concerns above party passions. This case puts the sincerity of that call to the test. The presidency is bigger than any president, and the US government endures after any particular administration has passed from the scene. It would be a horrendous scandal if an administration of the moment compromised the international integrity of the US government to settle an ideological score against domestic political opponents.