The Spanish Fly In Obama’s Ointment

When Barack Obama meets Spanish Prime Minister Jose Luis Rodriguez Zapatero in London this week at the G20 summit, it will be perversely interesting to see if Zapatero is greeted with the famous Obama smile or a less-often-seen, steely-eyed stare.

Spanish investigating magistrate Baltazar Garzón – the man who arrested former Chilean dictator Augusto Pinochet in 1998 – sent a 98-page complaint to prosecutors asking that John Yoo, William Haynes, David Addington, Alberto Gonzales, Jay Bybee and Doug Feith plus two unnamed others be investigated for war crimes. One of the two unnamed individuals is said to be former CIA head George Tenet, under whose watch CIA operatives tortured captives. Spain claims jurisdiction because five of its citizens were held at Guantanamo and tortured.

As reported here Sunday, coupled with Canada quietly asking top Bushies including the former president and vice president, Donald Rumsfeld, Alberto Gonzales and several others to not enter the country, foreign travel is increasingly problematic for the men who authorized torture and other war crimes during the Bush years. If any of the eight try entering any of the 25 European Union nations, they will likely be arrested and shipped off to Madrid.

While the Canadian admonition was sent privately, the Spanish investigation is very public and adds to the growing pressure on Pres. Obama and Attorney General Eric Holder to have the United States undertake its own investigation – something the president’s political advisors keep telling him to sidestep as long as possible.

Indeed, Garzón may well prove to be the Spanish fly in Obama’s ointment of trying to avoid naming an independent war crimes prosecutor.

Proactive Obligation

The fact is, under both US law and its treaty obligations, Obama has a legal requirement to proactively investigate what are now truly serious allegations of war crimes committed by high ranking Bush administration officials. Between Cheney’s repeated, public boasting of ordering torture and information contained in the Justice Dept. “torture memo’s” written by Yoo and Bybee, and approved by John Ashcroft and Gonzales, clearly there is a what lawyers call a prima facie case warranting a formal probe.

In other words, as constitutional lawyer Jonathan Turley has said repeatedly on MSNBC, the White House has no viable legal alternative but to investigate, regardless of the possible political cost.

One informed observer believes that Obama is undoubtedly aware of this and may be trying to postpone the inevitable until after the 2010 elections when, he hopes, the Democratic majority in the Senate will increase enough so that his legislative agenda can be passed without scrambling for a handful of Republican votes.

“There’s a certain realpolitick about this,” I was told by a friend in Washington who knows both the Obama White House and how Congress works. “Obama knows what he has to do but he also knows that without 60 sure Senate votes, the GOP will tie up everything else he wants to accomplish in political knots.”

Bad Timing

Obviously, The White House would like the timing of the Spanish initiative to be different. But as Michael Ratner, president of the Center for Constitutional Rights, said, the “investigation … (is) one that the Obama administration has to take very seriously. And it means that the pressure is increasing on this country to open its own criminal investigation.”

The G20 gathering is starting on a tense note anyway, with Britain and the US unhappy about the tepid response of many European governments about providing greater stimulus to their flailing economies. Spain is one of the nations that Washington and London wants to do more so it is uncertain how – or even if – Obama will raise the Garzon investigation with Zapatero at some over the next few days.

Chances are good that, whatever is said at the G20, the war crimes matter will not go quietly into that good night. Garzón has a long track record of successful prosecutions. In addition to the Pinochet matter, he has overseen human rights abuse investigations of the former military government in Argentina, Islamic terrorists operating in Spain, the armed Basque separatist group ETA, as well as major drug traffickers.