Opinion Spanish inquisition

Despite uncertainties here,developments overseas proceed apace. Spanish Magistrate Baltasar Garzon opened a formal investigation last week of six Bush administration lawyers for their roles in advising on interrogation techniques. Garzon 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,Garzon is essentially unaccountable,whatever the views of Spain’s elected government.

Asked repeatedly about Garzon’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 US lawyers “twist slowly,slowly in the wind.” Garzon’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,US consular officials would do more for the tourist than Obama is doing for the former Bush officials. If Obama is attempting to end the Garzon investigation,it is one of our best-kept secrets in decades.

Although the six lawyers are in a precarious position,the real targets are President Bush and his most senior advisers,and the real aim is to intimidate US officials into refraining from making hard but necessary decisions to protect our national security. There is never a shortage of second-guessers about US foreign policy. For example,former UN High Commissioner for Human Rights Mary Robinson said during the NATO-Serbia war over Kosovo: “If it is not possible to ascertain whether civilian buses are on bridges,should those bridges be blown?”

The question here is not whether one agrees or disagrees with the advice the lawyers gave,or with their superiors’ operative decisions concerning interrogation techniques. Instead,the critical question is who judges the official actions that US personnel took while holding government office. Is it our own executive and judicial branches,within our constitutional structures and protections,or some unaccountable foreign or international magistrate in some unaccountable distant court? The proper US position is to insist that our Constitution alone governs any review of our officials’ conduct.

This issue is not abstract. For the six lawyers,it has immediate effects on their lives,careers and families. Moreover,whether or not Obama has decided against prosecuting CIA agents,his decision in no way binds the creative mind of Senor Garzon,a man who has never shied from spotlights. Indeed,UN Special Rapporteur Manfred Nowak has already said that the other 145 states party to the Convention Against Torture must launch their own criminal investigations if the United States does not.

Behind-the-scenes diplomacy is often the best way to accomplish important policy objectives. But in this case,firm and public statements are necessary to stop the pending Spanish inquisition and to dissuade others from proceeding. The president must abandon his Ehrlichman-like policy and pronounce unequivocally that Spain should take whatever steps are necessary to stop Garzon.

Will President Obama’s successor vigorously dispute the legitimacy of foreign prosecutions,or will she follow the current Obama policy and let the foreign investigation proceed,perhaps even to trial? Obama and his advisers should think carefully about that second scenario — now.

(The writer was US ambassador to the United Nations; he was appointed by George W. Bush)