We’ll Prosecute Our Own Criminals, Nuestros Amigos (UPDATED)

A Spanish court issued indictments today for six Americans, some of whose names will sound familiar to all of you: Douglas Feith, John Yoo, Jay Bybee, William J. Haynes II, David Addington, and Alberto Gonzales. These six men are accused of authorizing the use of torture on five Spanish nationals held at Guantanamo Bay, under the charge of “crimes against humanity.”

Now, I have no great love for any of these men or what they did when they were in power during the Bush Administration. They led the country astray from its moral lodestar; they advocated policies that proved expensive and destructive and from which it will take at least a generation to recover and they did it based on scanty evidence and irrational faith in their ideologies and loyalty to President Bush rather than any real consideration as to whether the world or even the country would be a better place once it was done.

What’s more, I have no doubt that the Spanish judges and prosecutors who are involved in doing this are acting in good faith and out of moral conviction and a reasonable look at the evidence available to them. It’s not clear to me that torture actually went on under their watch, although many of these men made it clear that they would have had little problem such a state of affairs if had been true. Gonzales and Yoo, in particular, worked very hard to provide a moral and legal gloss to a practice that would obviously have been gravely wrong in both theaters.

Finally, I cannot argue with the argument that the indictments and prosecutions are at least colorably within the scope of what a nation’s judicial system can do. Any nation should be empowered to protect its own citizens through the use of legal processes. Spain is a civilized, western democracy with a strong rule of law. The United States has aggressively pushed for prosecution of “crimes against humanity” against any of a number of international baddies, from Saddam Hussein and his cronies to Slobodan Milosevic to the Nazis at Nuremburg, sometimes sending our own lawyers and judges to serve in prosecutorial and judicial functions. I cannot recall a time that a charge of “crimes against humanity” was prosecuted in a U.S. court, but we have prosecuted criminals who have attacked our nationals, up to and including convictions in absentia against Osama bin Laden and other al-Qaeda bad guys (some of whom have since met justice meted out on the battlefield). So I can’t immediately think of a reason why the Spanish court couldn’t do what it’s doing.

But I would resist calls to extradite these men to Spain, I call on the Spanish court to withdraw the indictments, and I hope that the United States government would put its full force and efforts to keep these men out of the reach of the Spanish justice system.

The reason why I say that is that on the occasions in which the U.S., and indeed any western democracy, has prosecuted former government officials for crimes against humanity there were two other conditions at issue — first, the crimes in question involved actual bloodshed and murder conducted under color of law on a large and systematic scale; and second, the native countries which would normally have exercise jurisdiction over these monsters lacked a functioning justice system from which any reasonable person would have expected a reliable and fair result. In other words, the crimes were so immensely awful, and the court system in place so obviously inadequate, that the only real way to get at these types was for another nation to step up and do the prosecution.

This is very clearly not the case with these former U.S. government officials. If they authorized torture (and like everyone else, they are entitled to a presumption of innocence), they did so for a limited class of individuals. And torture, while morally awful, is not the same thing as murder. Indeed, part of the point of torture is not to kill the subject but instead to keep him alive so that he can suffer more pain and hopefully start cooperating. Morally abhorrent? Yes, a thousand times yes. But it’s not murder. And if true in this case, it would have applied to hundreds, not tens of thousands, of victims. Where is the line drawn? I don’t pretend to know. But this is not the same thing as Himmler sending trainloads full of Jews off to be gassed.

And secondly, our judicial system is the gold standard against which other court systems around the world are compared, and there’s a lot of very good reasons for that. The same independent judiciary which conservatives decry is a big reason for that. The presence of professional, career prosecutors working aggressively to protect our justice systems (and subject to reprisals if they fall short of their ideals) is another. The fact that even politically-tinged disputes are submitted to independent review and examination is a third. I don’t think I’m being too much of an American chauvanist to say that our judicial system is the best there is, anywhere — and that’s in recognition of the fact that many other nations have top-notch judicial systems. Perhaps one of those other nations is even Spain. But no one can hold a candle to an Anglospheric system of justice, based as it is on a thousand years of common law and in particular in the United States based as it is on a Constitutional government still used as a model for new nations to draft their own new systems of government.

The fact of the matter is that if these guys did authorize torture, they would have done so in violation of the laws of this nation, there are substantial penalties they would face for having done so right here, and the incentives built in to our political and judicial systems are such that we can all be quite confident that law enforcement authorities, probably going all the way up to Attorney General Holder and President Obama, have confronted the issue of whether prosecutions should take place based upon the available evidence and the merits of the potential case. There is no need to submit the trial and punishment of these men to an international tribunal when we have the world’s best court system available to prosecute them right here.

Now, make no mistake. The only morally acceptable policy about torture for the United States to adopt and follow is “No torture, ever. Under any circumstances.” But the fact that these men advocated a different policy and may or may not have authorized a different policy to be fulfilled is not a reason for us to throw them to the mercies of a judicial system other than our own.

If these men did wrong, if they broke our laws, then yes, we should prosecute them. But that is for us to do, not the Spanish. We can and will take care of our own within our own judicial system. And we are yet in a position where we can and should be more than a little insulted at the suggestion that we would refuse to do so.

UPDATE: It would appear that the Attorney General of Spain agrees with me, and this will put an effective end to the indictment and investigation by Spain into this issue. “If there is a reason to file a complaint against these people, it should be done before local courts with jurisdiction, in other words in the United States,” he said in a breakfast meeting with journalists.