Prosecution of Bush Six Back On

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AP Photo; Nick Wass / AP Photo 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.

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