Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
What a remarkably good day it has been for Alberto Gonzales, John Yoo, and Jay Bybee (who is now, inexplicably, a federal judge). In the span of just a few hours, those ignominious men and dozens more learned that they would be spared from prosecution either here in the United States, where they formulated our odious torture policies, or in Spain, where or upon whose citizens those illegal policies were evidently practiced. Somewhere, Dick Cheney is smiling.
One by one, the hammer blows fell upon civil libertarians and millions of other Americans who believe that the people who legally sanctioned and then implemented torturous "enhanced interrogation tactics" should have had to defend their conduct in our courts of law. One by one, those enthusiastic supporters of the Obama administration's legal values and policies realized that they had just lost a battle (been wiped out, in fact) that they had every reason to believe they would win. There will be no torture trials. Period.
First,- as it was slickly releasing still more "torture memos" - that it would not just pass on prosecuting any Bush-era offenders but offer those very same offenders indemnity from prosecution or even Congressional investigation.
This means that former Bush officials will be given legal support by the U.S. government if and when they are questioned about their role in water-boarding and other tactics. Merry Christmas, John Yoo; you may go down in history as one of the worst government lawyers ever but at least you won't have to stand in the dock.
Then, a few hours later, Spain's attorney general announced that he, too, was not inclined to prosecute any former officials over torture if the United States itself wasn't so inclined. The announcement represented a complete turn from the direction most legal experts believed the Spanish investigation was taking - we had been told to expect an indictment this week! - which means either that all of those experts were wrong or that our government exerted extreme political and diplomatic pressure upon Spain to back off. I'll let you decide that one.
And poof, just like that, in a single afternoon, the entire world changed in the legal war on terror. President Obama declared that it was a "time for reflection and not retribution" but there is a vast middle ground between those two and plenty of smart lawyers and judges out there who believe that prosecuting government officials in these circumstances - circumventing recognized law - would not constitute "retribution" so much as "justice." In any event, we'll apparently never know. We were left instead with pap ("We cannot undo the past") from Dennis C. Blair, the Director of National Intelligence, who should have just saved his computer's memory and not written anything.
Certainly the torture memos themselves won't do the trick. The ones released today - appalling though they are - do not tell us more than specifics (gruesome ones) about ungainly facts that we have known for years. The banality of the memos is sickening and so, of course, is the way in which their reasoning and logic and authority were followed by so many people for so long within the Bush Administration. Speaking of which, here's the joke of the day: former Deputy Secretary of State Richard Armitage telling Al-Jazeera, Hamlet-like, that he would have resigned had he known we were water-boarding. Please. Sell that to the five people in the world who are buying it.
In any event, now the world knows that the Obama Administration doesn't want to fully look back to understand how it could come to pass as a matter of law that our nation would torture. The federal courts cannot initiate there own investigations or cases. So the nation turns its lonely eyes to Congress. Senate Judiciary Committee Chairman Sen. Patrick J. Leahy, D-Vt., has said for months that he favors a blue-ribbon "torture commission" that would truly (i.e., with subpoena power) investigate this matter. Will he now push forward with such a review? Or will he fold like a cheap umbrella the way Spain did today?
For the pro-prosecution gang, about the only bit of encouraging news came from Sen. Russ Feingold, also a Democratic member of the Judiciary Committee. He issued a release late in the day suggesting that the government's acknowledgment of immunity and indemnity only extended to the lower-level military officials who engaged in water-boarding and not to the men who drafted those memos, men like Steven Bradbury, the Office of Legal Counsel lawyer who just two months ago so publicly trashed his fellow traveler, John Yoo, over the matter. If Sen. Feingold is correct, if he's on to something, then this story may yet live another day. But I wouldn't bet on that.
Otherwise, and in the absence of a torture commission, we are effectively done with any sort of official exploration of our torturous past. Culpable men of one administration will hereby be protected by men of another administration. Nixon went to war with the New York Times and the Washington Post over the Pentagon Papers to protected Kennedy and Johnson. Obama now has thumbed his nose at some of his most enthusiastic supporters to protect some of Bush's men. And on and on it goes. Why anyone truly believed that this centuries-old dynamic would change, even with a man who made "change" his campaign tune, is beyond me.