Saturday, April 18, 2009


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.


By William Fisher

Lawyers who reject President Barack Obama’s decision not to seek prosecution of officials who may have participated in the torture of terror-suspect prisoners are seeking justice through another avenue: Sanctions against government lawyers who created the “enhanced interrogation” policies of former President George W. Bush.

Their first target is former Defense Department General Counsel William J. Haynes II. The San Francisco Bay Area chapter of the National Lawyers Guild (NLG) has filed a complaint against Haynes, asking the State Bar of California to investigate him and revoke his status as Registered In-House Counsel. Haynes is now an attorney with Chevron Corp. in San Ramon, California.

The Los Angeles Times reports that a similar complaint is being prepared in Pennsylvania against former Justice Department lawyer John C. Yoo, the University of California Berkeley law professor, for his role in drafting the legal guidelines that approved enhanced interrogation techniques including waterboarding during his service in the DOJ’s Office of Legal Counsel (OLC) during the Bush Administration.

Marjorie Cohn, President of the NLG, told us, “The lawyers who provided the high Bush officials with 'legal' cover were participants in formulating the policy of torture and cruel treatment. They should be the targets of criminal investigations and should also be disbarred for their ethical violations.”

She also noted that the complaint filed with the Pennsylvania state bar against John Yoo “has been put on hold pending the release of the report of the DOJ’s Office of Professional Responsibility, which is apparently highly critical of Yoo, Jay Bybee and Stephen Bradbury, authors of the torture memos."

Haynes served as the DOD General Counsel from May 24, 2001 until his abrupt resignation on February 25, 2008. He resigned days after an article accusing him of rigging trials of enemy prisoners at Guantánamo Bay appeared in “The Nation” magazine. Haynes was the DOD’s chief legal officer and legal adviser to then-Secretary of Defense Donald Rumsfeld.

Several memoranda to and from Haynes were released as part of the Obama Justice Department disclosures of March 2009.

Haynes was also one of the six Bush-era officials named in the ongoing investigation of torture and other unlawful acts currently being considered by the Spanish judiciary.

The NLG complaint charges that, while General Counsel at the DOD, Haynes breached his duty as a lawyer and advocated for harsh tactics amounting to torture in violation of U.S. and international law. His “improper advocacy directly lead to detainee abuses at the Guantanamo Bay and Abu Ghraib facilities,” the NLG complaint charges.

It says Haynes "breached his duty as a lawyer" in providing legal cover for U.S. soldiers and federal agents to use dogs, nudity, stress positions and other humiliating tactics to break down terror suspects.

The complaint says Haynes “is directly linked to the torture of at least one detainee,” Mohamed Mani Ahmad al-Kahtani, an alleged member of al-Qaeda, who allegedly intended to come to the U.S. to take part in the terrorist attacks of September 11, 2001 as a “muscle hijacker” but was refused entry due to suspicions that he was attempting to immigrate. Since January 2002, al-Kahtani has been detained at the U.S. prison at Guantanamo Bay, Cuba.

According to Susan J. Crawford, convening authority for military commissions at Guantanamo, Al-Kahtani’s treatment during this time was torture. She stated, “We tortured Kathani. His treatment met the legal definition of torture.” Because of his torture, Crawford dismissed the charges against him.

The NLG charges that Haynes is also directly linked to the prosecution of low-level service members for using techniques he approved.

Haynes’s conduct “demonstrates moral turpitude,” the NLG charged. The group alleges that he failed to show “respect for and obedience to the law, and respect for the rights of others” as required by the rules of the California bar.

He “intentionally or recklessly” failed to act competently, failed to adequately supervise the work of subordinate attorneys, and forwarded “shoddy legal memoranda regarding the definition of torture” to Rumsfeld.

“Haynes further acted incompetently by advising Secretary Rumsfeld to approve interrogation techniques that were in violation of U.S. and international law, and without even mentioning strong objections by the military,” the complaint says.

Under a legal memorandum written by Haynes and approved by Rumsfeld, one detainee was “bothered by the presence and touch of a female,” “females viewing his naked body,” and being refused the right to pray.

Haynes “recommended approval of aggressive interrogation techniques that the military stated may violate the law. He forced subordinate attorneys to rely on memoranda prepared by the Office of Legal Counsel that have since been rescinded in an unprecedented manner. His advice was so contrary to the law that Secretary Rumsfeld was forced to rescind the approval based on the Haynes Memo,” the NLG complaint says.

It continues, “There is absolutely no evidence that Mr. Haynes attempted to present an impartial, unbiased review of the law. All of the evidence shows that Mr. Haynes improperly advised the allowance of illegal and inhumane interrogation techniques.”

Haynes “failed to support or uphold the U.S. Constitution, and the laws of the United States, or to maintain the respect due to the courts of justice and judicial officers. His actions involved moral turpitude, dishonesty and corruption.”

He “abused and disrespected the law for political purposes. This is wrong.”

Haynes was nominated to the Fourth Circuit Court of Appeals by President George W. Bush on September 29, 2003. He was approved by a straight party-line vote of the Senate Judiciary Committee on November 19, 2003, but his involvement with the creation of a memorandum entuitled “Legal Arguments for Avoiding the Jurisdiction of the Geneva Conventions” triggered a filibuster that prevented his nomination from receiving a full Senate vote.

The “bar association strategy” has been effective a number of times in the recent past. In 2001, former President Bill Clinton resigned from the Supreme Court bar rather than face near-certain disbarment for perjury related to Lewinsky scandal. And the Arkansas bar moved to disbar Clinton, but offered a deal that saw him suspended for five years for making false statements in the Jennifer Flowers proceeding.

Former Vice President Spiro Agnew, having pleaded no contest -- which subjects a person to the same penalties as a guilty plea -- to charges of bribery and tax evasion, was disbarred from practicing law in Maryland, the state of which he had previously been governor.

And former President Richard Nixon was disbarred from practicing law in New York in 1976 for obstruction of justice related to the Watergate scandal.

The NLG complaint also draws on decisions reached in the Nuremberg trials of Nazi war criminals following World War Two. The complaint notes that one lawyer was found guilty of war crimes and crimes against humanity because he “materially contributed toward the prostitution of the Ministry of Justice and the courts and their subordination to the arbitrary will of Hitler, the Party minions, and the police. He participated in the corruption and perversion of the judicial system.”

The NLG says, “As shown in the Nuremberg trials, powerful leaders can and do engage in illegal acts and inhumane treatment of others. These leaders rely on lawyers and the legal system to give the appearance of legitimacy to an illegal agenda. Sadly, there always seem to be lawyers willing to do the bidding of powerful rulers.”