John R. Bolton - Obama's Prosecutions by Proxy

John R. Bolton's Washington Post op-ed piece Obama's Prosecutions by Proxy gives another dimension to the present debate over how the U.S. should deal with the alleged acts of torture perpetrated under the Bush administration upon terror suspects held prisoner at our Guantanamo Bay, Cuba, detention facility and elsewhere.

Mr. Bolton was a U.S. ambassador to the United Nations under President George W. Bush and is now a senior fellow at the conservative American Enterprise Institute and the author of the book Surrender Is Not an Option: Defending America at the United Nations and Abroad.

Mr. Bolton says his takeoff point is a reported threat from a magistrate in Spain to prosecute, among others, "six Bush administration lawyers for their roles in advising on interrogation techniques."

The article linked to above says that Spanish judge Baltasar Garzón, "Spain's most prominent investigative magistrate," is probing "alleged torture of terrorism suspects at Guantanamo Bay," a move that is "separate from a complaint by human rights lawyers that seeks charges against six specific Bush administration officials they accuse of creating a legal framework to permit torture of suspects at Guantanamo Bay and other U.S. detention facilities." Yet Mr. Bolton seems to lump the latter initiative in with the former in his diatribe against Garzón's move.

But never mind. The U.S. is being called to task abroad for torture tactics that putatively violated international covenants ... which, under our constitution, apparently have the force of law domestically as well. But it is not yet clear whether the Obama administration's Justice Department is going to prosecute anyone at all.

President Obama has said that the CIA personnel who carried out the "enhanced interrogation techniques" will not be charged with crimes. Other people involved, such as the various attorneys in the Office of Legal Counsel in the Bush Justice Department — the "six specific Bush administration officials," presumably — await a determination by Obama's Attorney General, Eric Holder, as to what further legal action will be taken.

Meanwhile, some Democratic leaders in Congress are talking of a formal 9/11-style commission to investigate the whole affair.

And, seemingly, jurists abroad are taking it upon themselves to push the investigative envelope. Garzón, the Spaniard, has said said he is "acting under [his] country's observance of the principle of universal justice, which allows crimes allegedly committed in other countries to be prosecuted in Spain." Yet he is apparently a maverick whose initiative or initiatives offend his own government: "Spanish prosecutors said on April 17 that any such probe should be carried out by the U.S. and recommended against it being launched in Spain. Their opinion has been endorsed by [Spanish] Attorney General Candido Conde-Pumpido."

Enter Mr. Bolton to complain that "the critical question is who judges the official actions that U.S. 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 U.S. position is to insist that our Constitution alone governs any review of our officials' conduct."