04.29.09

Prosecution of Bush Six Back On

The Daily Beast's Scott Horton reports that a judge in Spain decided today that an investigation of Bush officials involved in torture policy will go forward and can lead to prosecution.

In a ruling in Madrid today, Judge Baltasar Garzón has announced that an inquiry into the Bush administration’s torture policymakers now will proceed to a formal criminal investigation. The ruling came as a jolt following the recommendation of Spanish Attorney General Cándido Conde-Pumpido against proceeding with a criminal inquiry, which was  reported in The Daily Beast on April 16.

Judge Garzón previously initiated and handled investigations involving Chilean dictator Augusto Pinochet, Argentine “Dirty War” strategist Adolfo Scilingo and Guatemalan strongman José Efraín Ríos Montt, often over the objections of the Spanish attorney general. His case against Pinochet gained international attention when the Chilean general was apprehended in England on a Spanish arrest warrant. Scilingo was extradited to Spain and is now serving a sentence of 30 years for his role in the torture and murder of some 30 people, several of whom were Spanish citizens.

Garzón's ruling today marks a decision to begin a formal criminal inquiry into the allegations of torture and inhumane treatment he has been collecting for several years now.

Now, Garzón has announced a preliminary criminal inquiry into the Bush administration torture policy, specifying the evidence that a crime had been perpetrated against Spanish subjects, but not yet specifying the specific targets of the investigation. Judge Garzón’s decision revealed a deep engagement with documents which had been released in Washington in the last two weeks, particularly a group of memoranda prepared by lawyers in the Bush Justice Department’s Office of Legal Counsel, a report of the Senate Armed Services Committee, and a memo released by the Senate Intelligence Committee, making it likely that he would focus on the authors of the torture memoranda and other lawyers who worked with them.

The OLC memoranda gave a green light to the use of techniques such as waterboarding, hypothermia, stress positions, sleep deprivation of as much as 11 days, and confinement in a coffin-like environment with stinging insects in exploitation of a prisoner’s phobias with respect to specific prisoners, demonstrating that the lawyers had been deeply engaged in the process of application of torture techniques and not merely giving abstract legal guidance. The Senate Armed Services Committee report provided a detailed chronology of the process of formulation of policy respecting the treatment of prisoners, with a special focus on the introduction of torture techniques. The Senate Intelligence Committee memo detailed the steps leading to issuance of the OLC memos and identified the Justice Department lawyers and others involved in the process. Garzón noted, they "reveal what had previously been mere conjecture: namely an authorized and systematic program for the torture and mistreatment of persons denied their freedom without any charge whatsoever and without the rights the law grants any detainee."

Garzon’s investigation focuses on charges of conspiracy to introduce and implement a regime of torture at the detention facilities at Guantánamo in Cuba, where five prisoners investigated by Garzón were held. Four of the prisoners have now filed claims with Garzón in which they press charges that they were tortured during their captivity and their claims were validated at least to some extent by a June 2006 ruling of the Spanish Supreme Court, which overturned a conviction on the grounds that it was secured with evidence gathered through torture. The case has been pending since the time of their turnover from U.S. authorities with Judge Garzón, who has attempted to prosecute the five under counterterrorism statutes.

Garzón is also seeking to have the criminal complaint of a Spanish human-rights organization against the Bush Six—six top Bush administration officials—recently reassigned by the chief judge of the Audiencia Nacional to Judge Eloy Velasco, referred back to him for purposes of consolidation with his new preliminary investigation.

The procedural history of the case is somewhat complicated. On March 17, a Spanish human-rights organization, the Association for the Dignity of Prisoners, filed a criminal complaint asking the court to begin a criminal investigation into the role that six Bush administration lawyers played in the introduction of a torture regime at Guantánamo. The complaint cited Chapter III of Title XXIV of the Spanish Criminal Code, which addresses crimes against prisoners and protected persons during an armed conflict, which implements Common Article 3 of the Geneva Conventions. Named as targets were former attorney general Alberto Gonzales, former chief of staff to the vice president David Addington, former general counsel of the Department of Defense William J. Haynes II, former undersecretary of Defense Douglas J. Feith, former assistant attorney general and current federal judge Jay Bybee, and former deputy assistant attorney general and now professor of law at the University of California at Berkeley John Yoo.

The complaint alleged that they had written legal memoranda approving the introduction of torture techniques at Guantánamo, making them key players in a joint criminal enterprise that resulted in the torture of the five Spanish prisoners. The complaint was assigned to Judge Garzón as the investigating magistrate responsible for the case involving the five Spaniards previously held at Guantánamo.

Garzón solicited the opinion of prosecutors about whether the case should proceed. After prosecutors attached to the Audiencia Nacional prepared a 37-page memorandum recommending prosecution, however, Spain’s attorney general, Cándido Conde-Pumpido intervened, opposing the case. "If you investigate the crime of abuse of prisoners, the people probed have to be those who were materially responsible," the attorney general stated. He denied that lawyers could be help responsible on the basis of legal advice dispensed.

The Spanish attorney general’s statement came following intense back-channel discussions between the Obama administration and the government of Spanish Prime Minister José Zapatero. When asked about the pending case during an interview with CNN Español, President Barack Obama stated “I'm a strong believer that it's important to look forward and not backward, and to remind ourselves that we do have very real security threats out there." Obama acknowledged in the course of the interview that his administration had been in discussion with the Zapatero administration about the criminal investigation in Madrid.

Acting on the Spanish attorney general’s instructions, the prosecutors advised the court against proceeding with an investigation into the Bush Six. They also stated their view that Judge Garzón should not handle both the torture complaint and the case against the Guantánamo prisoners. Garzón reacted to this request by sending the torture complaint back to the court’s administrative judge for random reassignment—as a result of which it went to Judge Velasco. However, Garzón remained in charge of the case against the Guantánamo prisoners. He has in fact been assembling evidence for a criminal case addressing the mistreatment of the detainees for many months.

Garzón’s ruling today marks a decision to begin a formal criminal inquiry into the allegations of torture and inhumane treatment he has been collecting for several years now.

Spanish lawyers close to the case tell me that under applicable Spanish law, the Obama administration has the power to bring the proceedings in Spain against former Bush administration officials to a standstill. “All it has to do is launch its own criminal investigation through the Justice Department,” said one lawyer working on the case, “that would immediately stop the case in Spain.”

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.

Xtra Insight: Busting the Torture Myths by Scott Horton