Yoo in Clear or Not So Fast?
CBSNews.com Legal Analyst Andrew Cohen:
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.
Cheney has the muscles and other facial infrastructure required to smile? Who knew?
First, Obama's Justice Department announced 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.
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--a complete about-face from reports of impending indictments against Yoo and the rest of the so-called "Bush 6."
It is believed, but unconfirmed, the Obama administration exerted extreme political and diplomatic pressure on Spain to back off. This, despite Justice just releasing an August 2002 memo Yoo wrote concluding controversial interrogation techniques the CIA wanted to employ against terror suspects--including waterboarding and slapping--did not violate the federal statute against torture. Bybee, then the assistant attorney general, signed off on the memo.
As Yoo spends the spring as a visiting faculty member at Chapman, critics are demanding that he face disbarment, criminal sanctions or the loss of his regular teaching position at UC Berkeley's School of Law at Boalt Hall. The memo's release no doubt intensifies such criticism, with some also reserving a special place in Hell for Bybee, who Dubya appointed to the Ninth Circuit Court of Appeals, a.k.a. "activist" federal panel based in San Francisco.
Meanwhile, Scott Horton, a New York attorney specializing in international law and human rights and a legal affairs contributor to Harper's Magazine and a writer at The Daily Beast, told Amy Goodman this morning that Yoo may not be out of the woods yet when it comes to Spain. (See or hear Horton's Democracy Now! appearance here.)
In Spain, unlike the U.S., it is not up to prosecutors to choose whether or not to investigate a potential crime, but the judge who manages the case. In this instance, that's Baltasar Garzón, the investigative judge whose claim to fame was ordering the arrest of the former Chilean dictator Augusto Pinochet. According to Horton, Spanish prosecutors also tried to stop the Pinochet case from moving forward, something the crusading judge ignored.
So maybe those talking points are still valid--heck, with the released memo, even more valid. Then again, it's demoralizing that the hopes for justice when it comes to U.S. torture hang with lone judge half a world. No one expects a Spanish inquisition.