04.17.09

Will They Be Prosecuted?

Scott Horton has the latest developments on the torture case in Spain, where a high-ranking judge decides which jurist will determine the fate of the Bush Six.

Scott Horton has the latest developments on the torture case in Spain, where a high-ranking judge decides which jurist will determine the fate of the Bush Six. Despite the attorney general's efforts to stop the case, it will now proceed early next week.

Further developments in the case of the Bush Six in the Spanish Audiencia Nacional: At 11 o’clock this morning, the prosecutors attached to the court presented their opinion on whether the case should be prosecuted. Following the cue provided by Attorney General Cándido Conde Pumpido from his press conference in Madrid yesterday, the prosecutors argued that any criminal investigation coming out of the torture of five Spaniards at Guantánamo should focus on the persons actually administering the torture techniques, and not lawyers writing memoranda. The prosecutors also argued that Judge Garzón should refer the case to Ismail Moreno, another judge of the penal chamber of the Audiencia Nacional. Moreno is handling an investigation into charges that Khalid el-Masri, a German greengrocer, was kidnapped and held under sedation by the CIA at a safehouse on the Spanish island of Mallorca before being shipped off to another location. The prosecutors argued that as Garzón is trying to prosecute the five Spaniards released from Guantánamo, it would be improper for him simultaneously to handle the investigation of charges into the Bush Six on grounds that they conspired to torture the Spanish detainees.

Within a period of only a few hours, however, Judge Garzón issued an opinion on the matter. He rejected the application for a transfer to Judge Moreno saying he disagreed with the prosecutors’ analysis and felt the case should remain in his hands. However, recognizing the prosecutors’ objection, Garzón referred the case to the chief judge of the Audiencia Nacional’s penal chamber to make the final call as to whom the case should be referred. The case of the Bush Six is therefore now back in the court’s assignment system.

Lawyers familiar with Audiencia Nacional practices advise me that the chief judge usually decides questions about the referral of cases extremely quickly, in a matter of only a few days. If that holds in this case, then next week we should learn the identity of the judge who will decide whether the Bush Six case will move into the next phase of criminal investigation, or will be dropped.

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Scott Horton is a law professor and writer on legal and national-security affairs for Harper's magazine and The American Lawyer, among other publications.