Why Is Spain Doing America’s Work?

By William Fisher

Human rights organizations and legal scholars are applauding the efforts of Spanish lawyers in seeking the indictment of six former officials of the administration of President George W. Bush in connection with the torture of detainees at the U.S. military's Guantanamo Bay prison.

Spanish prosecutors may decide this week whether to proceed with an investigation. The prosecutors were asked to review the case by Baltasar Garzon, the crusading investigative judge who ordered the arrest of the former Chilean dictator Augusto Pinochet in 1998.

The official said that it was “highly probable” that the case would go forward and that it could lead to arrest warrants.

Garzon asked for the review following a complaint filed by Spanish human rights lawyers, who could pursue the case in court even if prosecutors decide not to take it further. This occurred in the Pinochet case.

The U.S. officials involved in the investigation include former U.S. Attorney
General Alberto Gonzales; John Yoo, the former Justice Department lawyer who wrote secret legal opinions saying President George W. Bush had the authority to circumvent the Geneva Conventions, Douglas Feith, the former undersecretary of defense for policy; William Haynes II, former general counsel for the Department of Defense; Jay Bybee, Yoo's former boss at the Justice Department's Office of Legal Counsel and now a Federal judge; and David Addington, chief of staff and legal adviser to former Vice President Dick Cheney.

The investigation would likely focus on whether these officials violated international law by providing a legal justification for the torture. It was triggered by a complaint filed by the Association for the Dignity of Inmates, a Spanish legal rights organization.

The six are said to have “participated actively and decisively in the creation, approval and execution of a judicial framework that allowed for the deprivation of fundamental rights of a large number of prisoners, the implementation of new interrogation techniques including torture, the legal cover for the treatment of those prisoners, the protection of the people who participated in illegal tortures and, above all, the establishment of impunity for all the government workers, military personnel, doctors and others who participated in the detention center at Guantánamo.”

A spokesman for the association, attorney Gonzalo Boye, said the six Americans had well-documented roles in approving illegal interrogation techniques, redefining torture and abandoning the definition set by the 1984 Torture Convention.

The views of Michael Ratner, president of the Center for Constitutional Rights – which has played a major role in mobilizing lawyers to defend Guantanamo detainees, probably represent the consensus among U.S. human rights advocates. He said, “The importance of this investigation can not be understated. Contrary to statements by some, the Spanish investigations are not ‘symbolic.’ Just ask Augusto Pinochet, who was stranded under house arrest in England and who ultimately faced criminal charges in Chile because of the pressure of the Spanish courts.”

He added, “If and when arrest warrants are issued, 24 countries in Europe are obligated to enforce them. The world is getting smaller for the torture conspirators.”

Brian J. Foley, Visiting Associate Professor of Law at Boston University, told us, “I hope Spain goes ahead with a full and fair investigation. These are serious allegations, and there needs to be a forum to air them. U.S. officials seem unwilling to look into the alleged war crimes, which is unfortunate and further diminishes any remaining U.S. moral authority. I hope the Spanish investigation is open and transparent, revealing the truth for the whole world to see -- including, perhaps especially, American citizens. We need to face what has been done in our name.”

And 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.

Spain's law allows it to claim jurisdiction in the case because five Spanish
citizens or residents who were prisoners at Guantanamo Bay say they were
tortured there.

The U.S. detention camp in Cuba was set up to hold foreigners captured after U.S.-led forces invaded Afghanistan to root out al Qaeda and its Taliban protectors in response to the attacks of September 11, 2001 against the United States. U.S. officials held that Guantanamo was beyond the reach of U.S. law, thus giving detainees no rights. But three landmark rebukes by the U.S. Supreme Court have destroyed that defense by ruling that prisoners have a right to challenge their detentions in U.S. civilian courts.

In one of his first acts in office, U.S. President Barack Obama set a one-year
deadline for shutting the prison where about 245 people are still detained and which has been widely viewed by the international community as a stain on the U.S. human rights record.

Under Spanish law, prosecutors recommend whether to proceed with cases and determine whether any trial would come under the jurisdiction of the High Court.

While there is no set deadline for a decision, a recommendation could come
this week, according to court officials.