I remember when this story first came out, and it really looked as though Spain would carry through on a war crimes prosecution of Bush and his administration officials who authorized torture. So now we know what really happened, thanks to Wikileaks: The Obama adminstration applied pressure to shut it down.

I suppose it's premature to speculate as to motives, but the continuing reports of torture at Bagram and the Obama administration's seeming indifference probably had at least a little to do with it. They wouldn't want to set a precedent that might be used against them:

In its first months in office, the Obama administration sought to protect Bush administration officials facing criminal investigation overseas for their involvement in establishing policies the that governed interrogations of detained terrorist suspects. An April 17, 2009, cable sent from the US embassy in Madrid to the State Department—one of the 251,287 cables obtained by WikiLeaks—details how the Obama administration, working with Republicans, leaned on Spain to derail this potential prosecution.

The previous month, a Spanish human rights group called the Association for the Dignity of Spanish Prisoners had requested that Spain's National Court indict six former Bush officials for, as the cable describes it, "creating a legal framework that allegedly permitted torture." The six were former Attorney General Alberto Gonzales; David Addington, former chief of staff and legal adviser to Vice President Dick Cheney; William Haynes, the Pentagon's former general counsel; Douglas Feith, former undersecretary of defense for policy; Jay Bybee, former head of the Justice Department's Office of Legal Counsel; and John Yoo, a former official in the Office of Legal Counsel. The human rights group contended that Spain had a duty to open an investigation under the nation's "universal jurisdiction" law, which permits its legal system to prosecute overseas human rights crimes involving Spanish citizens and residents. Five Guantanamo detainees, the group maintained, fit that criteria.

Soon after the request was made, the US embassy in Madrid began tracking the matter. On April 1, embassy officials spoke with chief prosecutor Javier Zaragoza, who indicated that he was not pleased to have been handed this case, but he believed that the complaint appeared to be well-documented and he'd have to pursue it. Around that time, the acting deputy chief of the US embassy talked to the chief of staff for Spain's foreign minister and a senior official in the Spanish Ministry of Justice to convey, as the cable says, "that this was a very serious matter for the USG." The two Spaniards "expressed their concern at the case but stressed the independence of the Spanish judiciary."

Two weeks later, Sen. Judd Gregg (R-N.H.) and the embassy's charge d'affaires "raised the issue" with another official at the Ministry of Foreign Affairs. The next day, Zaragoza informed the US embassy that the complaint might not be legally sound. He noted he would ask Cándido Conde-Pumpido, Spain's attorney general, to review whether Spain had jurisdiction.

On April 15, Sen. Mel Martinez (R-Fla.), who'd recently been chairman of the Republican Party, and the US embassy's charge d'affaires met with the acting Spanish foreign minister, Angel Lossada. The Americans, according to this cable, "underscored that the prosecutions would not be understood or accepted in the US and would have an enormous impact on the bilateral relationship" between Spain and the United States. Here was a former head of the GOP and a representative of a new Democratic administration (headed by a president who had decried the Bush-Cheney administration's use of torture) jointly applying pressure on Spain to kill the investigation of the former Bush officials. Lossada replied that the independence of the Spanish judiciary had to be respected, but he added that the government would send a message to the attorney general that it did not favor prosecuting this case.

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Bill Moyer talks to Mark Danner and Bruce Fein on last night's Journal:

The President had a press conference on Wednesday night in which he was asked two questions about torture. If you'd been there, Mark, what would you have asked him?

[...] BRUCE FEIN: I would have asked him, since he's agreed that what was done was torture, and that the United States criminal code makes torture a crime. And there's no national security exception, no exception if you get useful information. And because we had impeached, in the House Judiciary Committee, a former President, called Richard Nixon, for failing faithfully to execute the laws. How he can justify not moving forward with an investigation when we have a former President and Vice President openly acknowledging they authorized water boarding, what he has described as torture, is a crime.

Or in the alternative, if he thinks that there are mitigating circumstances, and there's body language suggests that, then he should pardon them like Ford did Richard Nixon. And the reason why the difference between a pardon and non-prosecution is important, is because a pardon requires the recipient to acknowledge guilt. That there was wrongdoing. There was a crime. Just forgetting and sweeping it under the rug suggests this wasn't illegal.

BILL MOYERS: But he is clearly trying to move, as he says, beyond the past. He's closing Guantanamo. He doesn't countenance torture. He says it won't happen on his watch. I mean, shouldn't that settle the issue?

MARK DANNER: This is an issue that, as he has put it, divides the country. But because it divides the country, in my opinion, is one reason we have to confront it. The idea that this is about the past is simply wrong. It's not about the past. It's about our present politics.

Fein is exactly right. As long as we act as if a crime wasn't committed, we undermine the rule of law.

Whenever things start looking really bleak -- like prison-time bleak -- for conservatives, you can always count on them to trot out that timeworn old Nixon favorite: "You're just criminalizing politics! Waaaaaaah!!!"

As Jon Perr recently elucidated, this has become a favorite line of the right with increasing frequency.

Of course, I fully agree that the criminalization of politics is a problem that needs to be solved. And I think the way to solve it is to get the criminals out of politics.

After all, nothing criminalizes politics faster than criminals. If we don't want to be charging our politicians with crimes they've committed while in office, we shouldn't be electing politicians who commit them. Or condone them.

Now, with the release of the torture memos -- which let us see, once and for all, just how morally and ethically depraved the Bush administration decided to make us -- the wingnuts are upping the ante.

Now we're "criminalizing conservatism".

Of course, I fully agree that the criminalization of conservatism is a problem that needs to be solved ...

The New York Times called today for investigation and prosecution of John Yoo and Stephen Bradbury, and impeachment of federal judge Jay Bybee:

We do not think Mr. Obama will violate Americans’ rights as Mr. Bush did. But if Americans do not know the rules, they cannot judge whether this government or any one that follows is abiding by the rules.

In the case of detainee abuse, Mr. Obama assured C.I.A. operatives that they would not be prosecuted for actions that their superiors told them were legal. We have never been comfortable with the “only following orders” excuse, especially because Americans still do not know what was actually done or who was giving the orders.

After all, as far as Mr. Bush’s lawyers were concerned, it was not really torture unless it involved breaking bones, burning flesh or pulling teeth. That, Mr. Bybee kept noting, was what the Libyan secret police did to one prisoner. The standard for American behavior should be a lot higher than that of the Libyan secret police.

At least Mr. Obama is not following Mr. Bush’s example of showy trials for the small fry — like Lynndie England of Abu Ghraib notoriety. But he has an obligation to pursue what is clear evidence of a government policy sanctioning the torture and abuse of prisoners — in violation of international law and the Constitution.

That investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Mr. Bush rewarded him with.

These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him. And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it.

After eight years without transparency or accountability, Mr. Obama promised the American people both. His decision to release these memos was another sign of his commitment to transparency. We are waiting to see an equal commitment to accountability.

John Amato wrote about it yesterday and called for the impeaching of Bybee.

Will you join me please and Sign the petition? With the revelations that Jay Bybee was in the middle of trying to legalize torture for the Bush administration, particularly with the evidence that he penned the disgusting torture memo in 2002, I fully support all efforts to have this man impeached. The OLC is supposed to give sound legal opinions to the executive branch, not bend the law to fit their sick world view which makes this all the more egregious.

Salon's Joan Walsh has a thoughtful followup here.

Scott Horton says indictments against Gonzales and several associates are very likely this week:

Spanish prosecutors have decided to press forward with a criminal investigation targeting former U.S. attorney general Alberto Gonzales and five top associates over their role in the torture of five Spanish citizens held at Guantánamo, several reliable sources close to the investigation have told The Daily Beast. Their decision is expected to be announced on Tuesday before the Spanish central criminal court, the Audencia Nacional, in Madrid. But the decision is likely to raise concerns with the human rights community on other points: they will seek to have the case referred to a different judge.

Both Washington and Madrid appear determined not to allow the pending criminal investigation to get in the way of improved relations.

The six defendants—in addition to Gonzales, Federal Appeals Court Judge and former Assistant Attorney General Jay Bybee, University of California law professor and former Deputy Assistant Attorney General John Yoo, former Defense Department general counsel and current Chevron lawyer William J. Haynes II, Vice President Cheney’s former chief of staff David Addington and former Under-Secretary of Defense Douglas J. Feith—are accused of having given the green light to the torture and mistreatment of prisoners held in U.S. detention in “the war on terror.”

The case arises in the context of a pending proceeding before the court involving terrorism charges against five Spaniards formerly held at Guantánamo. A group of human rights lawyers originally filed a criminal complaint asking the court to look at the possibility of charges against the six American lawyers. Baltasar Garzón Real, the investigating judge, accepted the complaint and referred it to Spanish prosecutors for a view as to whether they would accept the case and press it forward. “The evidence provided was more than sufficient to justify a more comprehensive investigation,” one of the lawyers associated with the prosecution stated.

But prosecutors will also ask that Judge Garzón, an internationally known figure due to his management of the case against former Chilean dictator Augusto Pinochet and other high profile cases, step aside. The case originally came to Garzón because he presided over efforts to bring terrorism charges against the five Spaniards previously held at Guantánamo. Spanish prosecutors consider it “awkward” for the same judge to have both the case against former U.S. officials based on the possible torture of the five Spaniards at Guantanamo and the case against those very same Spaniards. A source close to the prosecution also noted that there was concern about the reaction to the case in some parts of the U.S. media, where it had been viewed, incorrectly, as a sort of personal frolic of Judge Garzón.

Instead the prosecutors will ask Garzón to transfer the case to Judge Ismail Moreno, who is currently handling an investigation into kidnapping charges surrounding the CIA’s use of facilities as a safe harbor in connection with the seizure of Khalid el-Masri, a German greengrocer who was seized and held at various CIA blacksites for about half a year as a result of mistaken identity. The decision on the transfer will be up to Judge Garzón in the first instance, and he is expected to make a quick ruling. If he denies the request, it may be appealed.

Glenn Greenwald on why we're bound by law to prosecute torture cases. (Incidentally, he also points out that a new report states that Bush officials were informed that the legal memos submitted to justify torture were slanted to fit administration policy):

The U.S. really has bound itself to a treaty called the Convention Against Torture, signed by Ronald Reagan in 1988 and ratified by the U.S. Senate in 1994. When there are credible allegations that government officials have participated or been complicit in torture, that Convention really does compel all signatories -- in language as clear as can be devised -- to "submit the case to its competent authorities for the purpose of prosecution" (Art. 7(1)). And the treaty explicitly bars the standard excuses that America's political class is currently offering for refusing to investigate and prosecute: "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture" and "an order from a superior officer or a public authority may not be invoked as a justification of torture" (Art. 2 (2-3)). By definition, then, the far less compelling excuses cited by Conason (a criminal probe would undermine bipartisanship and distract us from more important matters) are plainly barred as grounds for evading the Convention's obligations.

There is reasonable dispute about the scope of prosecutorial discretion permitted by the Convention, and there is also some lack of clarity about how many of these provisions were incorporated into domestic law when the Senate ratified the Convention with reservations. But what is absolutely clear beyond any doubt is that -- just as is true for any advance promises by the Obama DOJ not to investigate or prosecute -- issuing preemptive pardons to government torturers would be an unambiguous and blatant violation of our obligations under the Convention. There can't be any doubt about that. It just goes without saying that if the U.S. issued pardons or other forms of immunity to accused torturers (as the Military Commissions Act purported to do), that would be a clear violation of our obligation to "submit the [torture] case to [our] competent authorities for the purpose of prosecution." Those two acts -- the granting of immunity and submission for prosecution -- are opposites.

And yet those who advocate that we refrain from criminal investigations rarely even mention our obligations under the Convention. There isn't even a pretense of an effort to reconcile what they're advocating with the treaty obligations to which Ronald Reagan bound the U.S. in 1988. Do we now just explicitly consider ourselves immune from the treaties we signed? Does our political class now officially (rather than through its actions) consider treaties to be mere suggestions that we can violate at will without even pretending to have any justifications for doing so? Most of the time, our binding treaty obligations under the Convention -- as valid and binding as every other treaty -- don't even make it into the discussion about criminal investigations of Bush officials, let alone impose any limits on what we believe we can do.