Why No Foreign Judge Will Punish Bush War Criminals

04/17/2009 12:03 pm ET | Updated May 25, 2011

If you're waiting for ex-President Bush, former Vice President Cheney and the whole host of their accompanying war criminals to be tried for any crime by any foreign nation, forget it. It's not going to happen

The latest hope that it might - that accountability and justice might someday be meted out to someone high up in the criminal Bush administration -- came from Spanish Judge Baltazar Garzon, the magistrate who stunned the world in 1998 by getting the murdering, torturing, thieving ex-Chilean dictator Augusto Pinochet arrested.

Judge Garzon recently asked Spain's career prosecutors to draw up a list of charges against former U.S. Attorney General Alberto Gonzales and five other high-ranking ex-Bush administration lawyers for torture and other war crimes at Guantanamo. The prosecutors did so and were about to begin investigating when Spain's attorney general turned down their proposed probe. "We cannot support that action," Attorney General Candido Conde-Pumpido said. "If you investigate the crime of abuse of prisoners, the people probed have to be those who were materially responsible."

Why Spain's attorney general failed to consider Gonzales and the five others "materially responsible" for prisoner abuse was not explained. They included torture memo writers Jay Bybee and John Yoo at the Justice Department -- who wrote that waterboarding wasn't torture, nor was anything short of "death, organ failure or permanent impairment of a significant body function;" or the Pentagon's chief counsel, William J. Haynes, who resigned just after a magazine article accused him of rigging trials of enemy prisoners at Guantanamo; Cheney's legal counsel, David Addington, a leading advocate of torture, or ex-Pentagon undersecretary Douglas Feith. Bush relied on their arguments and legal opinions to make it happen.

Judge Garzon could still bring charges against the six Americans, because in Spain, it's the judge not the attorney general who has the final say on whether a criminal prosecution goes forward. Spain claims jurisdiction in the case because five Spaniards were among the prisoners at Guantanamo who claim they were tortured. And Spain is a party to UN conventions banning torture.

Garzon became famous because of the Pinochet case. The former Chilean dictator who, during 17 years in office, ordered the killing and disappearance of thousands of his political opponents, and the torture and imprisonment of tens of thousands of others, was visiting Britain when Garzon had him served with an international arrest warrant. Pinochet was no longer Chile's leader but was still a government official when he was detained.

The British held Pinochet under house arrest for more than a year until Home Secretary Jack Straw determined, based on doctors' reports, that the 84-year-old ex-dictator was extensively brain damaged and thus unable to stand trial. Pinochet was charged with hundreds of additional crimes when he returned home to Chile but died in 2006 without ever being brought to trial.

But the United States is not Chile. I don't believe for a minute that President Obama would permit any of the six - or any other Bush administration official from the ex-president on down - to be tried by Judge Garzon or any other foreign official.

The United States has military forces in more than 100 countries, and so-called status of forces agreements protect even the lowliest American private soldier in virtually all of them from prosecution by a host government if he or she is carrying out an official duty. That being so, I find it inconceivable that any American president would permit a former high-ranking American official to be arrested and tried abroad for an official act, however deplorable, or however much the president himself disagreed with it.

What if after that president, or one of his top aides, leaves office, some tinhorn dictator in some banana republic who doesn't like him decides to put him in jail during a visit? No way would the U.S. allow that to happen. The U.S. armed forces are there to make sure it wouldn't.

Furthermore, when asked specifically by a CNN Espanol interviewer about the Spanish efforts to punish Bush administration lawyers, President Obama clearly indicated he had no stomach for that. "I'm a strong believer that it's important to look forward and not backward," he replied, disclosing further that "my team has been in communications" with the Spanish government and that "this will be worked out over time." International politics, power politics in other words, will trump any legalities.

Moreover, the president's assurance to CIA interrogators that they would not be punished for using harsh questioning techniques - and his accompanying statement that "This is a time for reflection, not retribution," plus the administration's assurance that the Justice Department would defend them against anyone else who tried to do so - leaves little doubt in my mind that Obama will not permit Bush's torturers to be punished abroad - or at home for that matter. Most especially not by Judge Garzon's Spain, which is now trying to improve its rocky relationship with the United States during the Bush administration.

Not everybody agrees with me on this. Scott Horton, a law professor, wrote this about the six Bush lawyers in yesterday's Daily Beast:

It is highly unlikely that extradition would be sought at this point, according to reliable sources, but if any of the defendants were to travel abroad--particularly to any of the 25 countries in which the European arrest warrant is honored--they might face arrest. A similar process launched the case of former Chilean dictator Augusto Pinochet, which was initiated and conducted by Judge Garzon.

No, Prof. Horton, this time I wouldn't bet on it, although I'd like it to happen as much as you would, and to a lot more Bushies, including the top one. But like I said, this is the big, bad U.S. of A. we're talking about, not a banana republic.