By William Fisher
Human rights advocates who were critical of President Barack Obama’s decision not to prosecute Central Intelligence Agency operatives who tortured war-on-terror prisoners are hailing a Spanish judge’s order to pursue a criminal investigation into the actions of six Bush administration lawyers for providing legal cover for torture – despite a recommendation from his prosecutors that the case not go forward.
Late last week, Spain's attorney general, Candido Conde-Pumpido, recommended that the judge, Baltasar Garzón, should dismiss the complaint, brought by human rights lawyers. A day later, the judge resisted pressure with a decision to proceed with the case.
The crusading investigative judge is the same official who ordered the arrest of the former Chilean dictator Augusto Pinochet in 1998.
The attorney general encouraged the judge to let sleeping Bush Administration officials lie. According to a report by the British Broadcasting Company (BBC), Conde-Pumpido said that Garzón’s proposed criminal investigation into the actions of former Bush officials for possible violations of international law has “no merit.”
The court is considering criminal action against six former Bush administration officials for reported torture at the U.S. prison at Guantanamo Bay, Cuba, The Americans named in the accusation include former U.S. attorney general Alberto R. Gonzales; former Justice Department lawyer John C. Yoo; former undersecretary of defense Douglas J. Feith; former Vice President Dick Cheney's chief of staff, David Addington; former Justice Department official Jay S. Bybee; and Pentagon lawyer William Haynes.
It alleges the men gave legal cover to torture by claiming that the U.S. president could ignore the Geneva Conventions. The case was brought by human rights lawyers.
Under Spanish law, once the judge receives the prosecutor's recommendation, he can either drop the case or open a full-blown probe that could lead to an indictment. It is the investigative judge, not the prosecutors, who files criminal charges.
Spanish law gives its courts jurisdiction beyond national borders in cases of torture or war crimes, based on a doctrine known as universal justice, though the government has recently said it hopes to limit the scope of the legal process.
One of the Spanish human rights lawyers who brought the case, Gonzalo Boye, told Associated Press that the claim of Spanish jurisdiction was bolstered by the fact that five Guantanamo Bay inmates were either citizens or residents of Spain.
But this case, if it ultimately goes forward, will have implications far beyond Spain, because arrest warrants issued in Spain will be binding on all twenty-seven European Union member states.
Most of the men under investigation have not commented, but Feith has strongly rejected the charges and the claim that Spain has jurisdiction, saying the case was "a national insult with harmful implications."
Spain's government, which has been trying to improve its relationships with Washington, has insisted their courts are independent and that the executive branch has no sway over its decisions.
Spain, like many other countries in Europe, has a special interest in these
cases since five of its citizens and residents were tortured or abused at
Human rights advocates have been unanimously supportive of Spain’s efforts to move the case forward.
The Center for Constitutional Rights (CCR), which represents many of the men detained by the U.S. government at Guantánamo, praised Spanish judge Garzon’s decision to pursue a criminal investigation into the actions of six Bush administration lawyers.
Michael Ratner, CCR’s president, said, “The importance of this investigation can not be understated. Contrary to statements by some, the Spanish investigations are not ‘symbolic.’ He noted that if and when arrest warrants are issued, all countries in the European Union will be obligated to enforce them. The world is getting smaller for the torture conspirators.”
CCR, along with the European Center for Constitutional and Human Rights
(ECCHR) and the International Federation of Human Rights (FIDH), has tried three times, twice in Germany and once in France, to bring criminal cases in Europe against former Bush officials. The German case is still pending.
Marjorie Cohn, President of the National Lawyers Guild, told us, “The only reason Spain is considering the prosecution of Americans for torture is because the United States is refusing to do so. Eric Holder must follow U.S. law and initiate criminal investigations of Bush officials who committed torture and other war crimes. Political considerations should not control our obligation under the Torture Convention to prosecute or extradite war criminals."
A similar view was expressed by Ben Wizner, attorney in the National Security Project of the American Civil Liberties Union (ACLU). He told us, “The idea of Spain investigating America’s treatment of detainees is an embarrassment to us. Once we were the world’s leading champions, not only of human rights, but of accountability. We shouldn’t be depending on other countries to clean up our mess.”
“If the Obama Administration did what the law required – appoint a special prosecutor – we would see fewer of our allies feeling they have to do our work,” he added.
Amnesty International called on the U.S. administration to initiate criminal investigations and prosecutions of those responsible for carrying out acts of torture, including waterboarding, in its "war on terror".
"President Obama's statements in the last days have been very disappointing. In saying that no one will be held to account for committing acts of torture, the U.S. administration is in effect condoning torture," said Daniel Gorevan, of Amnesty International's Counter Terror with Justice campaign.
"It's saying that U.S. personnel can commit acts of torture and the authorities will not take any action against them,” he said.
The UK-based legal charity, Reprieve, which represents a recently freed Guantanamo Bay prisoner, Binyam Mohamed, said it welcomed last week’s release of documents detailing how CIA lawyers sanctioned the systematic use of torture and calls for a serious response to the crimes committed.
“These memos expose the facilitating role played by lawyers, doctors and psychologists in the CIA torture program,” said Reprieve investigator Clara Gutteridge.
“The Bush Administration has professionalized torture and it will take more than the release of a few memos to put this right,” she added.
“Grave crimes have been committed in the ‘War on Terror’ and we must above all ensure that they never happen again. For this, nothing less than complete transparency is required,” she said.
Mohamed, a British resident now back in the U.K., claims he was rendered to CIA “black sites” – secret prisons now banned by President Obama – before being flown to Guantanamo Bay for years of incarceration. The U.S. authorities dropped all charges against him, but before they did so they pressured him to plead guilty to an unspecified crime and to promise never to talk to the media and never to sue the U.S. He refused.
He is currently attempting to bring lawsuits in the U.K., with the help of Reprieve, and in the U.S., with the help of the American Civil Liberties Union (ACLU). In the U.S. case, the government has moved to have the case dismissed under the “state secrets” privilege, saying that disclosure of any of the evidence in court would compromise national security.