It goes where it goes.That's the phrase glimpsed in the tea leaves after Thursday's release of Office of Legal Counsel memoranda that professed to give legal justification for waterboarding and other coercive interrogation measures.
IntLawGrrl Naomi Norberg opined Sunday that President Barack Obama, by announcing that the United States would not prosecute CIA operatives who implemented policies the memos condoned, okayed prosecutions in countries outside the United States. Surely she wrote with tongue in cheek, given reports that Obama is "hoping that" the possibility that Spain might launch a criminal investigation of 6 Bush Administration lawyers "will go away." (Prior post.) (The decision now is in the court of Judge Baltasar Garzón.) Obama's emphasis from the outset -- with which this IntLawGrrl heartily agrees -- has been a forward look toward dismantling post-9/11 abuses.
At the same time, it must be noted that Obama has refrained from any public condemnation of proceedings in Spain, or elsewhere for that matter.
Also to be noted:
Obama gave a U.S. prosecutorial pass only to "those who carried out their duties relying in good faith upon legal advice from the Department of Justice," to "men and women of our intelligence community." Glaring is the omission of any reference to the lawyers who gave that advice. Presumably, they remain exposed. So too any official who acted in bad faith or without bothering to secure cover from what I have called (p. 2126) "legalist" -- as opposed to legal -- advice. Reinforcing that presumption is this snippet from Sunday's Face the Nation interview with Obama adviser David Axelrod:
Well, the president has said, if there were agents of the United States government acting on legal advice that what they were doing was legal and appropriate, that they should not be prosecuted.
If people acted outside the law, that's a different issue.
As to those people, it goes where it goes.
It might go to an investigatory body, and not one as far away as Spain:
► A Senate intelligence panel is continuing its examination of CIA's post-9/11 behavior, and its chair, Dianne Feinstein, doesn't want to rule out prosecutions before that study is completed, 6-8 months from now.
► The New York Times wants Congress to impeach Jay Bybee, the erstwhile OLC head who's now a judge on the U.S. Court of Appeals for the 9th Circuit.
► Some are working to establish a commission of inquiry along the lines of the 9/11 Commission.
► Others are calling for a special prosecutor.
Both of these 2 latter proposals make more sense now than they did before Obama's action on Thursday. Any investigator knows that the way to move toward the truth, the way to make a case against higher-ups, is to immunize lower-level hirelings.
In short, it seems we have not heard the last on calls for accountability. Not even within the United States.
Investigation, it goes where it goes.
