Report: Spanish Bush Six Prosecution To Proceed

By Steve Hynd

Despite mainstream reports in America that the Spanish prosecution of Bush offcials for involvement in torture had been halted, IPS reports that the investigating judge has ignored the Spanish attorney general's recommendation and is going to proceed with the case. It now looks likely to move as far as arrest warrants unless the Spanish government decides to make an unprecedented intervention to spare its American ally's embarassment.

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 U.S. nationals named in the accusation include former U.S. attorney general Alberto R. Gonzales; former Justice Department lawyer John C. Yoo; former undersecretary of defence 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.

Arrest warrants issued in Spain would be binding on all 27 European Union member states.

Various human rights groups are quoted in the IPS piece stating the obvious - that Spain wouldn't have to prosecute if the U.S. would at least begin a proper investigation.

Marjorie Cohn, president of the National Lawyers Guild, told IPS, "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 IPS, "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.

If Obama keeps to his current line, it's not inconceivable that he might find his own name on an arrest warrant one day - as an accessory after the fact.

Update: I missed this, but the UN special rapporteur on torture, Manfred Nowak, says Obama's blanket decision not to prosecute torturers is illegal under international law.

"The United States, like all other states that are part of the UN convention against torture, is committed to conducting criminal investigations of torture and to bringing all persons against whom there is sound evidence to court," Mr Nowak told the Austrian daily Der Standard.

..."The fact that you carried out an order doesn't relieve you of your responsibility," he was quoted as saying by AP news agency.

Mr Nowak, an Austrian law professor, said US courts could still try those suspected of carrying out torture, as Mr Obama has not sought an amnesty law for affected CIA personnel.

And Scott Horton points to the way in which those who wrote the memos giving a legalistic veneer to torture deliberately ignored all the legal precedents, including Nuremberg, and thus the memos become "documents that evidence criminal conduct" by those Bush administration lawyers. The clear precedent is Nuremberg's Reich Justice Ministry case. As Horton wrote back in 2006:

That case stands for some simple propositions. One of them is that lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals, chargeable with potentially capital offenses. Another is that cute lawyerly evasions and gimmicks, so commonly indulged in other areas of the law, will not be tolerated on fundamental questions of law of armed conflict relating to the protection of civilians and detainees. In other words, lawyers are not permitted to get it wrong.

White House chief of staff Rahm Emmanuel has ruled out prosecutions for these war criminals too.

Comments

[Dragon]

One thing I've considered is the Obama administration is counting on events like in Spain to build to a head, THEN take action here. Releasing the various memos is providing a huge amount of ammo to those that want to see prosecution in America and beyond. I honestly wonder if that's meant to actually fan the fires.

The game's not played out yet - though I imagine it will get rather dangerous, and a lot of form Bush administration officials may find their travel options limited.

[BJ Bjornson]

One of those cases when I'm happy to be proven wrong

[Jimbo]

"One thing I've considered is the Obama administration is counting on events like in Spain to build to a head, THEN take action here."

I am not sure that the US Government and US Justice is capable of prosecuting serious crimes by Government Officials.

Mai Lai, nada, Watergate, nada, Iran Contra, nada.