Spanish Court Begins Criminal Investigation into Bush Torture Team

OMG! The April 13 issue of the New Yorker has a Talk of the Town brief article by Jane Mayer titled "The Bush Six." She focuses largely on the author, Philippe Sands, whose book Torture Team (see also here) seems to have sparked a criminal investigation in Spain. Sands is a British Queens Counsel and a law professor at University College, London. He actually is quite a prolific author. I found a very brief note in the Washington Post dated March 29, which states that the judge has referred the case to prosecutors to decide if it has merit enough to pursue.

The "Bush Six" include (in alphabetical order):
David Addington, chief of staff and principal legal advisor to Vice-President Dick Cheney;
Jay S. Bybee, a Justice Department official;
Douglas Feith, former Under-Secretary of Defense for Policy;
Alberto Gonzales, former Attorney General;
William J. Haynes, II, Pentagon lawyer
John Yoo, former Justice Department lawyer;

The Spanish court, with Judge Baltasar Garzón, has begun "...weighing charges that [the six Bush administration figures] had enabled and abetted torture by justifyng the abuse of terrorism suspects." (Mayer, p. 23). Judge Garzón was the courageous jurist who, about ten years ago, was assigned to the case prosecuting Chilean strongman Augusto Pinochet for human rights abuses. The decision in that case was an important precedent in international human rights law, holding that there can be no immunity for even the highest ranked government officials when the accusation is a matter of torture. The BBC, in a profile of Judge Garzón, from September, 2005, has some biographical and professional information, but also this helpful orientation to the Spanish legal system and how these investigations work:

Under Spanish law, judges have the right to try foreigners suspected of genocidal acts that have taken place outside Spain.

Mr Garzon is one of six investigating judges for Spain's National Court which, like many other European countries, operates an inquisitorial system, as opposed to the adversarial system used by the US and UK.

The investigating judge's role is to examine the cases assigned to him by the court, gathering evidence and evaluating whether the case should be brought to trial. He does not try the cases himself.

It is worth following the second link provided above for Sands' book, because the TortureTeam.com web pages include helpful items such as several items of evidence made available online, and an extensive list of coverage by opinion leaders, scholars, media outlets and even a Congressional hearing on the issue.

My colleague, Michael Avery, sent around an April Fools e-mail that alleged that John Yoo had been arrested for crimes against humanity when he traveled to Europe. It's possible that if these guys travel overseas in the near future, such an announcement may not be a joke! This will be a hot potato for the Obama administration, as the Wall Street Journal online already demonstrated today. In an unattributed editorial piece, they state

Judge Baltasar Garzón, an ambitious Spanish jurist, last month ordered prosecutors to investigate six men who served in the Bush Administration on criminal charges related to "torture." None of the prospective defendants are accused of torturing or ordering the torture of anyone -- only of arguing for legal positions of which Judge Garzón disapproves. He asserts that the principle of "universal jurisdiction" gives him the authority to try U.S. officials for alleged violations of international law.

At a State Department briefing last week, a reporter asked Gordon Duguid, the acting deputy department spokesman, for the Obama Administration's position. His reply: "I'm not aware of any contact with the Spanish Foreign Ministry on this. It's a matter in the Spanish courts, as I'm given to understand. I don't have a comment for you on it at this time. The Obama Administration's position on the matters that are under discussion, I think are quite clear."

This is about as unclear a response as one can imagine. Far from being a mere "matter in the Spanish courts," Judge Garzón's action is an assault on American sovereignty and the integrity of the U.S. legal system. And while some in the Obama Administration may be tempted to cheer him on for partisan reasons, they risk helping to set a precedent that could easily come back to hurt them.

On the other side, Amnesty International's blog post ties the Spanish investigation to a concurrent investigation in Britain into the participation of a British "Security Service (MI5) officer known only as Witness B in the interrogation of former Guantanamo inmate Binyam Mohamed during his detention in Karachi in 2002." The blog further calls on U.S. citizens to rally:

In the next few weeks Americans will have the opportunity to reverse this situation without looking to a foreign court to take the lead. The Senate Armed Services Committee is soon expected to re-release its damning bipartisan December 2008 report on the Treatment of Detainees in U.S. Custody reinforced by more than 200 pages of newly declassified material not previously released to the public.

The first version of this report identified those senior officials most responsible for the detainee abuses that occurred in Iraq, Afghanistan and Guantanamo. This expanded version will lay out the evidence of their complicity in compelling detail. The Committee Chairman, Senator Carl Levin (Democrat, Michigan), has already stated that he plans to refer the report to the Department of Justice. The Obama administration will then face the first great test of its campaign rhetoric. The President has said that no one in America is above the law, he will soon have the opportunity to prove it.

The image is a photograph of Judge Baltasar Garzón, from Wikipedia, which credits it to the Presidency of Argentina.