Prosecution of Bush Six Back On

[Cees Binkhorst]

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http://www.thedailybeast.com/blogs-and-stories/2009-04-29/prosecution-of-bush-six-back-on/p/

In a ruling in Madrid today, Judge Baltasar Garzón has announced that an
inquiry into the Bush administration’s torture policy makers now will
proceed into 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, 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 thirty persons, several of whom were Spanish citizens.

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 (OLC) 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 up to
eleven 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 ruling of the Spanish Supreme Court
in June 2006 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 counter-terrorism 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 (Asociación pro dignidad de los presos y presas de España),
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 Under-Secretary 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 backwards, 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.

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