First, a lot of countries (including the United States) have expended considerable diplomatic effort to hold people like Serbia’s Slobodan Milosevic or Liberia’s Charles Taylor accountable for their crimes. Apparently Obama feels that this principle can be jettisoned when it might be politically expedient to do so. At a minimum, we ought to remember this incident the next time we get upset that some other country is declining to prosecute a former leader, turning a blind eye to some other ruler's depredations (think Robert Mugabe), or cutting a deal with some warlord or terrorist leader. Maybe they were making pragmatic calculations too, and we holier-than-thou Americans ought to be a bit less judgmental.
Second, does our failure to prosecute open the door to other efforts to do so? A number of states (France, Canada, Belgium, Spain, etc.) have incorporated a principle of “universal jurisdiction” into their own domestic legal systems, when dealing with genocide, war crimes, or crimes against humanity (including torture). This principle can be invoked when the home country of the alleged perpetrator is "unwilling or unable to prosecute" Earlier reports suggesting that Spanish officials were going to indict six former Bush administration officials eventually led Spain's attorney general to say that U.S. courts would be the proper venue, but Obama has now made it clear that this isn't going to happen. I don’t know what the practical implications might be, but if I were Dick Cheney or David Addington, I wouldn’t be planning a summer vacation in Spain.
Third, for those of you who think that power is of declining relevance in world politics and that normative and legal standards are becoming increasingly important, I'd just point out that the various officials who sanctioned these abuses would be in a lot more trouble if they came from a weak and vulnerable state, as opposed to a global power like the United States. Not only does power corrupt, but it allows people who sanction torture to get away with it, albeit at some considerable cost to America's image and reputation. Those reputational costs will be borne by all Americans, who ought to be furious at the crimes that were committed in their name.
I'm somewhat disappointed by the lack of accountability for administration members, but not surprised. I would hope that a country like the United States, which has been a democracy (of sorts, at least) throughout its existence, would be politically mature enough to prosecute people who break international laws. Sadly, this is not the case now, nor has it ever been. Walt writes that "for those of you who think that power is of declining relevance in world politics and that normative and legal standards are becoming increasingly important, I'd just point out that the various officials who sanctioned these abuses would be in a lot more trouble if they came from a weak and vulnerable state, as opposed to a global power like the United States". This has also always been the case. Germany and Japan were rightly held accountable for war-crimes after World War II, but the US, Britain and the Soviet Union were not. Curtis LeMay, who had engineered the firebombing of Tokyo (killing roughly 100,000) commented that if we'd lost the war, he'd be tried as a war criminal.
In a similar vein, Telford Taylor (a chief prosecutor at the Nuremberg trials) commented in 1971 that if we applied the same standards to the architects of Vietnam that we did at Nuremberg and Tokyo, the leaders of the US would likely meet the same fate as General Tomoyuki Yamashita: hanging. I don't think this is any less true of the architects of the "War on Terror", who among other things have organized secret "black sites" in which to torture people, and have purposely sent people to be torture. The men who wrote the torture memo are no less callous and banal than Eichmann in Jerusalum. The difference is Eichmann got caught.
Fortunately, there is hope. The administration expressly ruling out prosecution of certain individuals opens the door (as Walt points out) to universal jurisdiction. Phillipe Sands, a longtime critic of the torture team, pointed out a year ago that this should be taken care of by the United States, or else we'd be face with international prosecution of US citizens. Though this would be far from the ideal solution, (the ideal being accountability for these individuals here in the US) I hope the international community takes action. It's time that citizens of powerful countries, not just two-bit dictatorships, be held accountable for their actions.