I was asked to go on Hardball on Tuesday night to discuss the news that Spanish prosecutors are likely to recommend a full investigation be conducted to determine if six former Bush administration officials—including ex-Attorney General Alberto Gonzales—ought to be indicted for having sanctioned torture at Guantanamo. So I thought I'd ask White House press secretary Robert Gibbs about the matter.
This could become a true headache for the White House—a high-profile case in which Spanish prosecutors bring charges against Gonzales; Douglas Feith, former undersecretary of defense; David Addington, former counsel to Vice President Dick Cheney; William Haynes, a former Pentagon lawyer; and John Yoo and Jay Bybee, two former Justice Department officials. Several steps must occur before any prosecution proceeds. If the prosecutors determine a full criminal investigation is warranted--as is expected--it will be up to a Spanish judge to open a full-fledged inquiry that could produce indictments. He could decide not to accept the recommendation. And, of course, it's possible that an investigation could end without indictments. The Spanish hook for the case is a simple one: Five Guantanamo detainees were either Spanish citizens or residents. And, by the way, Spanish courts claim jurisdiction that extends to other nations when it comes to torture and war crimes.
What would the Obama administration do, if the Spanish judge currently overseeing the Bush Six case, Baltasar Garzon (who is famous for pursuing terrorists and for having chased after Chilean dictator Augusto Pinochet), greenlights the investigation? At the Tuesday afternoon White House daily briefing, I asked Gibbs if the administration would cooperate with any requests from the Spaniards for information and documents. He had a predictable response: "I don't want to get involved in hypotheticals." He quickly pivoted to point out that Obama has moved to prohibit torture at Gitmo and elsewhere.
I posed a follow-up: Have you spoken to the Spanish government about this case? He seized on my use of the word "you" and, with a broad smile, said, "I have not spoken with the Spanish." Reporters in the room laughed. I obviously did not mean him personally; the "you" had referred to the Obama administration. Nor did I mean, I added, Bill Burton, the deputy press secretary, or any of the other press aides in the room. The point was whether the administration had been in contact with the Spanish government about the Bush Six investigation. "The Justice Department?" I asked. Gibbs, though, essentially brushed off the question: "I would send you to Justice. Like I said, I've not spoken" to the Spanish government.
That, too, was to be expected. Often White House press secretaries say, take your query elsewhere. Yet moments later, when a reporter asked Gibbs if Obama had any reaction to the conservative groups organizing "tea parties" of protest on tax day, he replied, "I've never monitored them nor spoken with the Spanish about them." People in the room laughed. And when the questioning in the room turned to the all-important subject of the Obama's new Portuguese water dog, Gibbs continued the joke. Noting that the dog might be spotted on the White House lawn later in the day or that it might not, he added that "the dog has also not talked to the Spanish about impending torture cases." More laughter. But I wondered, had the press secretary just made a joke about a torture investigation? Gibbs, like other press secretaries, uses humor to disarm, deflect, or dodge. But was this untoward?
The president and his aides do not seem eager to investigate the alleged misdeeds of the Bush-Cheney administration. The political calculation is obvious and not without justification: There's a lot of hard stuff to get done these days and probing former Bush officials could be seen as a distraction and possibly undermine political support for the administration and Democrats in Congress. But such political figuring may not influence the independent Spanish judicial system and Judge Garzon (who has been asked by Spanish prosecutors not to continue handling the Bush Six case because he is already overseeing terrorist prosecutions against these ex-Gitmo detainees). If an investigation proceeds, Obama could well have to decide whether or not to comply with Spanish requests for US government documents--that is, to help or hinder the investigation. Later in the process, Obama could even conceivably have to contend with extradition requests. If any of this comes to pass, it won't then be a laughing matter.