Spanish Court Weighs Inquiry On Torture For 6 Bush-Era Officials
Spanish Court Weighs Inquiry on Torture for 6 Bush-Era Officials
http://www.nytimes.com/2009/03/29/world/europe/29spain.html?ref=europe
Published: March 28, 2009
LONDON — A Spanish court has taken the first steps toward opening a criminal investigation into allegations that six former high-level Bush administration officials violated international law by providing the legal framework to justify the torture of prisoners at Guantánamo Bay, Cuba, an official close to the case said.
The case, against former Attorney General Alberto R. Gonzales and others, was sent to the prosecutor’s office for review by Baltasar Garzón, the crusading investigative judge who ordered the arrest of the former Chilean dictator Augusto Pinochet. The official said that it was “highly probable” that the case would go forward and that it could lead to arrest warrants.
The move represents a step toward ascertaining the legal accountability of top Bush administration officials for allegations of torture and mistreatment of prisoners in the campaign against terrorism. But some American experts said that even if warrants were issued their significance could be more symbolic than practical, and that it was a near certainty that the warrants would not lead to arrests if the officials did not leave the United States.
The complaint under review also names John C. Yoo, the former Justice Department lawyer who wrote secret legal opinions saying the president had the authority to circumvent the Geneva Conventions, and Douglas J. Feith, the former under secretary of defense for policy.
Most of the officials cited in the complaint declined to comment on the allegations or could not be reached on Saturday. However their defenders have said their legal analyses and policy work on interrogation practices, conducted under great pressure after the 2001 terrorist attacks, are now being unfairly second-guessed after many years without a terrorist attack on the United States.
The court case was not entirely unexpected, as several human rights groups have been asking judges in different countries to indict Bush administration officials. One group, the Center for Constitutional Rights, had asked a German prosecutor for such an indictment, but the prosecutor declined.
Judge Garzón, however, has built an international reputation by bringing high-profile cases against human rights violators as well as international terrorist networks like Al Qaeda. The arrest warrant for General Pinochet led to his detention in Britain, although he never faced a trial. The judge has also been outspoken about the treatment of detainees at Guantánamo Bay.
Spain can claim jurisdiction in the case because five citizens or residents of Spain who were prisoners at Guantánamo Bay have said they were tortured there. The five had been indicted in Spain, but their cases were dismissed after the Spanish Supreme Court ruled that evidence obtained under torture was not admissible.
The 98-page complaint, a copy of which was obtained by The New York Times, is based on the Geneva Conventions and the 1984 Convention Against Torture, which is binding on 145 countries, including Spain and the United States. Countries that are party to the torture convention have the authority to investigate torture cases, especially when a citizen has been abused.
The complaint was prepared by Spanish lawyers, with help from experts in the United States and Europe, and filed by a Spanish human rights group, the Association for the Dignity of Prisoners.
The National Court in Madrid, which specializes in international crimes, assigned the case to Judge Garzón. His acceptance of the case and referral of it to the prosecutor made it likely that a criminal investigation would follow, the official said.
Even so, arrest warrants, if they are issued, could still be months away.
Gonzalo Boye, the Madrid lawyer who filed the complaint, said that the six Americans cited had had well-documented roles in approving illegal interrogation techniques, redefining torture and abandoning the definition set by the 1984 Torture Convention.
Secret memorandums by Mr. Yoo and other top administration lawyers helped clear the way for aggressive policies like waterboarding and other harsh interrogation techniques, which the C.I.A. director, the attorney general and other American officials have said amount to torture.
The other Americans named in the complaint were William J. Haynes II, former general counsel for the Department of Defense; Jay S. Bybee, Mr. Yoo’s former boss at the Justice Department’s Office of Legal Counsel; and David S. Addington, who was the chief of staff and legal adviser to Vice President Dick Cheney.
Mr. Yoo declined to comment on Saturday, saying that he had not seen or heard of the petition.
Mr. Feith, who was the top policy official at the Pentagon when the prison at Guantánamo was established, said he did not make the decision on interrogation methods and was baffled by the allegations. “I didn’t even argue for the thing I understand they’re objecting to,” he said.
But Mr. Boye said that lawyers should be held accountable for the effects of their work. Noting that the association he represents includes many lawyers, he said: “This is a case from lawyers against lawyers. Our profession does not allow us to misuse our legal knowledge to create a pseudo-legal frame to justify, stimulate and cover up torture.”
Prosecutions and convictions under the Torture Convention have been rare.
Reed Brody, a lawyer at Human Rights Watch who has specialized in this issue, said that even though torture was widely practiced, there were numerous obstacles, including “a lack of political will, the problem of gathering evidence in a foreign country and the failure of countries to pass the necessary laws.”
This year for the first time, the United States used a law that allows it to prosecute torture in other countries. On Jan. 10, a federal court in Miami sentenced Chuckie Taylor, the son of the former Liberian president, to 97 years in a federal prison for torture, even though the crimes were committed in Liberia.
Last October, when the Miami court handed down the conviction, Attorney General Michael MuKasey applauded the ruling and said: “This is the first case in the United States to charge an individual with criminal torture. I hope this case will serve as a model to future prosecutions of this type.”
The United States, however, would be expected to ignore an extradition request for former officials, although other investigations within the United States have been proposed. Calls for the Justice Department to open a criminal investigation have so far been resisted by the Obama administration, but for more than four years, the Justice Department ethics office has been conducting its own investigation into the work of Mr. Yoo and some of his colleagues.
While the officials named in the complaint have not addressed these specific accusations, Mr. Yoo defended his work in an opinion column in The Wall Street Journal on March 7, warning that the Obama administration risked harming national security if it punished lawyers like himself.
“If the administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today’s intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future,” Mr. Yoo wrote.
Scott Shane and Eric Schmitt contributed reporting from Washington.
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MADRID, – A Spanish court has agreed to consider opening a criminal case against six former Bush administration officials, including former Attorney General Alberto Gonzales, over allegations they gave legal cover for torture at Guantanamo Bay, a lawyer in the case said Saturday.
Human rights lawyers brought the case before leading anti-terror judge Baltasar Garzon, who agreed to send it on to prosecutors to decide whether it had merit, Gonzalo Boye, one of the lawyers who brought the charges, told The Associated Press.
The ex-Bush officials are Gonzales; former undersecretary of defense for policy Douglas Feith; former Vice President Dick Cheney's chief of staff David Addington; Justice Department officials John Yoo and Jay S. Bybee; and Pentagon lawyer William Haynes.
Yoo declined to comment. A request for comment left with Feith through his Hudson Institute e-mail address was not immediately returned.
Spanish law allows courts to reach beyond national borders in cases of torture or war crimes under a doctrine of universal justice, though the government has recently said it hopes to limit the scope of the legal process.
Garzon became famous for bringing charges against former Chilean dictator Augusto Pinochet in 1998, and he and other Spanish judges have agreed to investigate alleged abuses everywhere from Tibet to Argentina's "dirty war," El Salvador and Rwanda.
Still, the country's record in prosecuting such cases has been spotty at best, with only one suspect extradited to Spain so far.
When a similar case was brought against Israeli officials earlier this year, Foreign Minister Miguel Angel Moratinos assured his Israeli counterpart that the process would be quashed.
Even if indictments are eventually handed down against the U.S. officials, it is far from clear whether arrests would ever take place. The officials would have to travel outside the United States and to a country willing to take them into custody before possible extradition to Spain.
The officials are charged with providing a legal cover for interrogation methods like waterboarding against terrorism suspects at Guantanamo, which the Spanish human rights lawyers say amounted to torture.
Yoo, for instance, wrote a series of secret memos that claimed the president had the legal authority to circumvent the Geneva Conventions.
President George W. Bush always denied the U.S. tortured anyone. The U.S. has acknowledged that Khalid Sheikh Mohammed, the self-described plotter of Sept. 11, and a few other prisoners were waterboarded at secret CIA prisons before being taken to Guantanamo, but the Bush administration insisted that all interrogations were lawful.
Boye said he expected the National Court to take the case forward, and dismissed concerns that it would harm bilateral relations between the two countries.
He said that some of the victims of the alleged torture were Spaniards, strengthening the argument for Spanish jurisdiction.
"When you bring a case like this you can't stop to make political judgments as to how it might affect bilateral relations between countries," he told the AP." It's too important for that."
Boye noted that the case was brought not against interrogators who might have committed crimes but by the lawyers and other high-placed officials who gave cover for their actions.
"Our case is a denunciation of lawyers, by lawyers, because we don't believe our profession should be used to help commit such barbarities," he said.
Another lawyer with detailed knowledge of the case told the AP that Garzon's decision to consider the charges was "a significant first step." The lawyer spoke on condition of anonymity because he was not authorized to talk to the media.
There was no immediate comment from Garzon or the government.
The judge's decision to send the case against the American officials to prosecutors means it will proceed, at least for now. Prosecutors must now decide whether to recommend a full-blown investigation, though Garzon is not bound by their decision.
The proceedings against the Bush Administration officials could be embarrassing for Spanish Prime Minister Jose Luis Rodriguez Zapatero, who has been keen to improve ties with the United States after frosty relations during the Bush Administration.
Zapatero is scheduled to meet President Barack Obama for the first time on April 5 during a summit in Prague.
Spanish judge accuses six top Bush officials of torture
Legal moves may force Obama's government into starting a new inquiry into abuses at Guantánamo Bay and Abu Ghraib
Julian Borger and Dale Fuchs in Madrid
The Observer, Sunday 29 March 2009
Criminal proceedings have begun in Spain against six senior officials in the Bush administration for the use of torture against detainees in Guantánamo Bay. Baltasar Garzón, the counter-terrorism judge whose prosecution of General Augusto Pinochet led to his arrest in Britain in 1998, has referred the case to the chief prosecutor before deciding whether to proceed.
The case is bound to threaten Spain's relations with the new administration in Washington, but Gonzalo Boyé, one of the four lawyers who wrote the lawsuit, said the prosecutor would have little choice under Spanish law but to approve the prosecution.
"The only route of escape the prosecutor might have is to ask whether there is ongoing process in the US against these people," Boyé told the Observer. "This case will go ahead. It will be against the law not to go ahead."
The officials named in the case include the most senior legal minds in the Bush administration. They are: Alberto Gonzales, a former White House counsel and attorney general; David Addington, former vice-president Dick Cheney's chief of staff; Douglas Feith, who was under-secretary of defence; William Haynes, formerly the Pentagon's general counsel; and John Yoo and Jay Bybee, who were both senior justice department legal advisers.
Court documents say that, without their legal advice in a series of internal administration memos, "it would have been impossible to structure a legal framework that supported what happened [in Guantánamo]".
Boyé predicted that Garzón would issue subpoenas in the next two weeks, summoning the six former officials to present evidence: "If I were them, I would search for a good lawyer."
If Garzón decided to go further and issued arrest warrants against the six, it would mean they would risk detention and extradition if they travelled outside the US. It would also present President Barack Obama with a serious dilemma. He would have either to open proceedings against the accused or tackle an extradition request from Spain.
Obama administration officials have confirmed that they believe torture was committed by American interrogators. The president has not ruled out a criminal inquiry, but has signalled he is reluctant to do so for political reasons.
"Obviously we're going to be looking at past practices, and I don't believe that anybody is above the law," Obama said in January. "But my orientation's going to be to move forward."
Philippe Sands, whose book Torture Team first made the case against the Bush lawyers and which Boyé said was instrumental in formulating the Spanish case, said yesterday: "What this does is force the Obama administration to come to terms with the fact that torture has happened and to decide, sooner rather than later, whether it is going to criminally investigate. If it decides not to investigate, then inevitably the Garzón investigation, and no doubt many others, will be given the green light."
Germany's federal prosecutor was asked in November 2006 to pursue a case against Donald Rumsfeld, the former defence secretary, Gonzales and other officials for abuses committed in Guantánamo Bay and Abu Ghraib prison in Iraq. But the prosecutor declined on the grounds that the issue should be investigated in the US.
Legal observers say the Spanish lawsuit has a better chance of ending in charges. The high court, on which Garzón sits, has more leeway than the German prosecutor to seek "universal jurisdiction".
The lawsuit also points to a direct link with Spain, as six Spaniards were held at Guantánamo and are argued to have suffered directly from the Bush administration's departure from international law. Unlike the German lawsuit, the Spanish case is aimed at second-tier figures, advisers to Bush, Cheney and Rumsfeld, with the aim of being less politically explosive.
The lawsuit claimed the six former aides "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 centre at Guantánamo".
"All the accused are members of what they themselves called the 'war council'," court documents allege. "This group met almost weekly either in Gonzales's or Haynes's offices."
In a now notorious legal opinion signed in August 2002, Yoo and Bybee argued that torture occurred only when pain was inflicted "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death".
Another key document cited in the Spanish case is a November 2002 "action memo" written by Haynes, in which he recommends that Rumsfeld give "blanket approval" to 15 forms of aggressive interrogation, including stress positions, isolation, hooding, 20-hour interrogations and nudity. Rumsfeld approved the document.
The 1984 UN Convention against Torture, signed and ratified by the US, requires states to investigate allegations of torture committed on their territory or by their nationals, or extradite them to stand trial elsewhere.
Last week, Britain's attorney general, Lady Scotland, launched a criminal investigation into MI5 complicity in the torture of Binyam Mohamed, a British resident held in Guantánamo.
The Obama administration has so far avoided taking similar steps. But the possibility of US prosecutions was brought closer by a report by the Senate armed services committee at the end of last year, which found: "The abuse of detainees in US custody cannot simply be attributed to the actions of 'a few bad apples' acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorised their use against detainees."
None of the six former officials could be reached for comment yesterday. Meanwhile, Vijay Padmanabhan, a former state department lawyer, said the creation of the Guantánamo Bay detention camp was "one of the worst over-reactions of the Bush administration".
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