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Spanish prosecutors will investigate Guantánamo torture

Posted by msrb on April 15, 2009

The Bush Six to Be Indicted

by Scott Horton

Spanish prosecutors will seek criminal charges against Alberto Gonzales and five high-ranking Bush administration officials for sanctioning torture at Guantánamo.

Spanish prosecutors have decided to press forward with a criminal investigation targeting former U.S. Attorney General Alberto Gonzales and five top associates over their role in the torture of five Spanish citizens held at Guantánamo, several reliable sources close to the investigation have told The Daily Beast. Their decision is expected to be announced on Tuesday before the Spanish central criminal court, the Audencia Nacional, in Madrid. But the decision is likely to raise concerns with the human-rights community on other points: They will seek to have the case referred to a different judge.

Guantánamo

Guantánamo prisoners 2002. Photo: picture-alliance/dpa. Image may be subject to copyright.

Both Washington and Madrid appear determined not to allow the pending criminal investigation to get in the way of improved relations.

The six defendants—in addition to Gonzales, Federal Appeals Court Judge and former Assistant Attorney General Jay Bybee, University of California law professor and former Deputy Assistant Attorney General John Yoo, former Defense Department general counsel and current Chevron lawyer William J. Haynes II, Vice President Cheney’s former chief of staff David Addington, and former Undersecretary of Defense Douglas J. Feith—are accused of having given the green light to the torture and mistreatment of prisoners held in U.S. detention in “the war on terror.” The case arises in the context of a pending proceeding before the court involving terrorism charges against five Spaniards formerly held at Guantánamo. A group of human-rights lawyers originally filed a criminal complaint asking the court to look at the possibility of charges against the six American lawyers. Baltasar Garzón Real, the investigating judge, accepted the complaint and referred it to Spanish prosecutors for a view as to whether they would accept the case and press it forward. “The evidence provided was more than sufficient to justify a more comprehensive investigation,” one of the lawyers associated with the prosecution stated.

But prosecutors will also ask that Judge Garzón, an internationally known figure due to his management of the case against former Chilean dictator Augusto Pinochet and other high-profile cases, step aside. The case originally came to Garzón because he presided over efforts to bring terrorism charges against the five Spaniards previously held at Guantánamo. Spanish prosecutors consider it “awkward” for the same judge to have both the case against former U.S. officials based on the possible torture of the five Spaniards at Guantánamo and the case against those very same Spaniards. A source close to the prosecution also noted that there was concern about the reaction to the case in some parts of the U.S. media, where it had been viewed, incorrectly, as a sort of personal frolic of Judge Garzón. Instead, the prosecutors will ask Garzón to transfer the case to Judge Ismail Moreno, who is currently handling an investigation into kidnapping charges surrounding the CIA’s use of facilities as a safe harbor in connection with the seizure of Khalid el-Masri, a German greengrocer who was seized and held at various CIA blacksites for about half a year as a result of mistaken identity. The decision on the transfer will be up to Judge Garzón in the first instance, and he is expected to make a quick ruling. If he denies the request, it may be appealed.

Judge Garzón’s name grabs headlines in Spain today less because of his involvement in the Gonzales torture case than because of his supervision of the Gürtel affair, in which leading figures of the conservative Partido Popular in Madrid and Valencia are now under investigation or indictment on suspicions of corruptly awarding public-works contracts. Garzón is also the nation’s leading counterterrorism judge, responsible for hundreds of investigations targeting Basque terrorist groups, as well as a major recent effort to identify and root out al Qaeda affiliates operating in the Spanish enclaves of North Africa.

Announcement of the prosecutor’s decision was delayed until after the Easter holiday in order not to interfere with a series of meetings between President Barack Obama and Spanish Prime Minister José Zapatero. However, contrary to a claim contained in an editorial on April 8 in the Wall Street Journal, the Obama State Department has been in steady contact with the Spanish government about the case. Shortly after the case was filed on March 17, chief prosecutor Javier Zaragoza was invited to the U.S. embassy in Madrid to brief members of the embassy staff about the matter. A person in attendance at the meeting described the process as “correct and formal.” The Spanish prosecutors briefed the American diplomats on the status of the case, how it arose, the nature of the allegations raised against the former U.S. government officials. The Americans “were basically there just to collect information,” the source stated.The Spanish prosecutors advised the Americans that they would suspend their investigation if at any point the United States were to undertake an investigation of its own into these matters. They pressed to know whether any such investigation was pending. These inquiries met with no answer from the U.S. side.

Spanish officials are highly conscious of the political context of the case and have measured the Obama administration’s low-key reaction attentively. Although Spain is a NATO ally that initially supported “the war on terror” under Bush with a commitment of troops in both Iraq and Afghanistan, relations with the Bush administration deteriorated after Zapatero became prime minister and acted quickly to withdraw the Spanish contingent in Iraq. In the 2008 presidential campaign, Republican John McCain referred to Spain as a hostile state in comments that mystified Spaniards (it appears that McCain may have confused Spain with Venezuela and Zapatero with Hugo Chávez). Recently, the United States and Spain also wrangled over Spain’s decision to withdraw its troop commitment in Kosovo as well. Both Zapatero and Obama, however, have given a high priority to improving relations between the two long-standing allies. Spanish newspapers hailed the fact that Obama referred to Zapatero three times as “my good friend” during the recent European summit meetings, a sharp contrast with meetings at which former President Bush gave Zapatero a cold shoulder.

Both Washington and Madrid appear determined not to allow the pending criminal investigation to get in the way of improved relations, which both desire, particularly in regard to coordinated economic policy to confront the current financial crisis and a reshaped NATO mandate for action in Afghanistan. With the case now proceeding, that will be more of a challenge. The reaction on American editorial pages is divided—some questioning sharply why the Obama administration is not conducting an investigation, which is implicitly the question raised by the Spanish prosecutors. Publications loyal to the Bush team argue that the Spanish investigation is an “intrusion” into American affairs, even when those affairs involve the torture of five Spaniards on Cuba.

The Bush Six labored at length to create a legal black hole in which they could implement their policies safe from the scrutiny of American courts and the American media. Perhaps they achieved much of their objective, but the law of unintended consequences has kicked in. If U.S. courts and prosecutors will not address the matter because of a lack of jurisdiction, foreign courts appear only too happy to step in.

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.

Copyright the author/The Daily Beast

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5 Responses to “Spanish prosecutors will investigate Guantánamo torture”

  1. msrb said

    UPDATE: Spain: No torture probe of US officials

    By PAUL HAVEN – APRIL 17, 2009

    MADRID (AP) — Spain should not investigate allegations that six senior Bush administration officials gave legal cover for the torture of terror suspects at Guantanamo Bay, Spanish prosecutors formally recommended Friday.

    While their ruling is not binding, the announcement all but dooms prospects for the case against the men going forward. On Thursday, Spain’s top law-enforcement official Candido Conde-Pumpido said he would not support an investigation against the officials — including former U.S. Attorney General Alberto Gonzales.

    Prosecutors said any such investigation ought to be conducted in the United States, not Spain. They also questioned the idea of bringing charges against lawyers and presidential advisers who neither carried out the alleged torture themselves, nor were ultimately responsible for ordering it.

    The prosecutors wrote that going after lawyers who wrote nonbinding recommendations for the president and his senior staff, rather than targeting higher-ranking officials who authorized the alleged torture, “raises important problems from a legal standpoint.”

    It also questioned the appropriateness of a case that would effectively put on trial “all of the policies of the past U.S. administration (as reproachable as they may be),” saying such an endeavor was beyond the scope of the Spanish legal system.

    The case is one of several legal actions taken or in the works against Bush administration officials overseas, and the first to get as far as it did.

    On Thursday, President Barack Obama assured CIA operatives they would not be prosecuted for their rough interrogation tactics, and his attorney general offered them legal help if anyone else takes them to court over methods approved by the Bush administration.

    The Spanish case was brought to investigative judge Baltasar Garzon last month by a group of human rights lawyers.

    In Friday’s writ, the prosecutors recommended that if any investigation is opened, Garzon should be replaced by another judge who is already investigating whether secret CIA flights to or from Guantanamo entered Spanish airspace or landed at Spanish airports.

    A few hours later, Garzon formally handed the case to a board of National Court magistrates that will decide which judge should handle the matter. Observers say the move was another serious blow for the human rights lawyers, who saw Garzon as sympathetic to their cause.

    Spanish law gives its courts jurisdiction beyond national borders in cases of torture, war crimes and other heinous offenses, based on a doctrine known as universal justice, but the government has said it wants to rein in the process.

    In addition to Gonzales, the complaint named ex-Undersecretary of Defense 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.

    Associated Press Writer Jorge Sainz contributed to this report.

    Copyright © 2009 The Associated Press. All rights reserved.

  2. msrb said

    Related Article: President absolves CIA officers for using torture
    Documents released by administration cite methods used
    By JENNIFER LOVEN AND DEVLIN BARRETT, Associated Press

    WASHINGTON – President Barack Obama absolved CIA officers from prosecution for harsh, painful interrogation of terror suspects Thursday, even as his administration released Bush-era memos graphically detailing — and authorizing — such grim tactics as slamming detainees against walls, waterboarding them and keeping them naked and cold for long periods.

    Human rights groups and many Obama officials have condemned such methods as torture. Bush officials have vigorously disagreed.

    In releasing the documents, the most comprehensive accounting yet of interrogation methods that were among the Bush administrations most closely guarded secrets, Obama said he wanted to move beyond “a dark and painful chapter in our history.”

    Past and present CIA officials had unsuccessfully pressed for more parts of the four legal memos to be kept secret, and some critics argued the release would make the United States less safe.

    Michael Hayden, who led the CIA under George W. Bush, said CIA officers will now be more timid and allies will be more reluctant to share sensitive intelligence.

    “If you want an intelligence service to work for you, they always work on the edge. That’s just where they work,” Hayden said. Now, he argued, foreign partners will be less likely to cooperate with the CIA because the release shows they “can’t keep anything secret.”

    On the other side, human rights advocates argued that Obama should not have assured the CIA that officers who conducted interrogations would not be prosecuted if they used methods authorized by Bush lawyers in the memos.

    Obama disagreed, saying in a statement, “Nothing will be gained by spending our time and energy laying blame for the past.”

    The Bush administration memos describe the tough interrogation methods used against 28 terror suspects, the fullest and now complete government accounting of the techniques. They range from waterboarding — simulated drowning — to using a plastic neck collar to slam detainees into walls.

    Other methods were more psychological than violent. One technique approved but never used involved putting a detainee who had shown a fear of insects into a box filled with caterpillars.

    The documents also offer justification for using the tough tactics.

    A May 30, 2005, memo says that before the harsher methods were used on top al-Qaida detainee Khalid Sheikh Mohammed, he refused to answer questions about pending plots against the United States.

    “Soon, you will know,” he told them, according to the memo.

    It says the interrogations later extracted details of a plot called the “second wave” to use East Asian operatives to crash a hijacked airliner into a building in Los Angeles.

    Terror plots that were disrupted, the memos say, include the alleged effort by Jose Padilla to detonate a “dirty bomb” spreading nuclear radiation.

    Even as they exposed new details of the interrogation program, Obama and Attorney General Eric Holder, offered the first definitive assurance that the CIA officials who were involved are in the clear, as long as their actions were in line with the legal advice at the time.

    Holder went further, telling the CIA the government would provide free legal representation to its employees in any legal proceeding or congressional investigation related to the program and would repay any financial judgment.

    “It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department,” Holder said.

    Obama said in his statement and a separate letter sent directly to CIA employees that the nation must protect their identity “as vigilantly as they protect our security.”

    Current CIA Director Leon Panetta said in a message to his employees: “CIA responded, as duty requires.”

    Some parts of the memos were blacked out, and Panetta had pushed for more redactions, according to a government official who declined to be named because he was not authorized to release the information.

    The CIA has acknowledged using waterboarding on three high-level terror detainees in 2002 and 2003, with the authorization of the White House and the Justice Department. Hayden said waterboarding has not been used since, but some human rights groups have urged Obama to hold CIA employees accountable for what they, and many Obama officials, say was torture.

    The memos produced by the Justice Department’s Office of Legal Counsel in 2002 and 2005 were released to meet a court-approved deadline in a lawsuit against the government in New York by the American Civil Liberties Union.

    “It’s impossible not to be shocked by the contents of these memos,” said ACLU lawyer Jameel Jaffer. “The memos should never have been written, but we’re pleased the new administration has made them public.”

    In addition to detailing individual techniques, one memo also specifically authorized a method for combining multiple methods, a practice human rights advocates argue crosses the line into torture even if any individual methods does not.

    The methods authorized in the memos include keeping detainees naked, keeping them in painful standing positions and keeping their cells cold for long periods of time. Other techniques include depriving them of solid food and even beating and kicking them. Sleep deprivation, prolonged shackling and threats to a detainee’s family were also used.

    Interrogators were told not to allow a prisoner’s body temperature or food intake to fall below a certain level, because either could cause permanent damage, said senior administration officials.

    The Obama administration last month released nine legal memos from the Bush administration. It probably will release more as the ACLU lawsuit proceeds, the officials said.

    The lawsuit has sought to use the Freedom of Information Act to shed light on the treatment of prisoners — though the Bush administration eventually abandoned many of the legal conclusions put forth in the memos and the Obama administration has gone further to actively dismantle much of President Bush’s anti-terror program.

    Obama has ordered the CIA’s secret overseas prisons known as “black sites” closed and has ended “extraordinary renditions” of terrorism suspects to other countries if there is any reason to believe those countries would torture them. He has also restricted CIA questioning to methods and protocols approved for use by the U.S. military until a complete review of the program is conducted.

    Also on Thursday, Holder formally revoked every legal opinion or memo issued during Bush’s presidency that justified interrogation programs.

    The documents have been the subject of a long, fierce debate inside and outside government over how much should be revealed about the previous administration’s approach.

    In his statement, Obama said he was reassured about the potential national security implications by the fact that much of the information contained had already been widely publicized — including some of it by Bush himself — and by the fact that the program no longer exists as it did.

    Withholding the memos, Obama argued, would only serve to deny facts already in the public domain.

    “This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States,” the president said.

    Those assurances are not likely to inoculate Obama against criticism from conservatives. Last month, former Vice President Dick Cheney said that Obama’s decisions to revoke Bush-era terrorist detainee policies will “raise the risk to the American people of another attack.”

    Associated Press Writer Pamela Hess contributed to this report.
    Copyright AP.

  3. msrb said

    Europeans may investigate Bush officials
    By Craig Whitlock
    The Washington Post
    BERLIN — European prosecutors are likely to investigate CIA and Bush administration officials on suspicion of violating an international ban on torture if they are not held legally accountable at home, according to U.N. officials and human rights lawyers.

    Many European officials and civil liberties groups said they were disappointed by President Obama’s opposition to trials of CIA interrogators who subjected terrorism suspects to waterboarding and other harsh tactics. They said the release last week of secret U.S.

    Justice Department memos authorizing the techniques will make it easier for foreign prosecutors to open probes if U.S. officials do not.

    Some European countries, under a legal principle known as universal jurisdiction, have adopted laws giving themselves the authority to investigate torture, genocide and other human rights crimes anywhere in the world, even if their citizens are not involved. Although it is rare for prosecutors to win such cases, those targeted can face arrest if they travel abroad.

    Martin Scheinin, the U.N. special investigator for human rights and counterterrorism, said the interrogation techniques approved by the Bush administration clearly violated international law. He said the lawyers who wrote the Justice Department memos, as well as senior figures such as former vice president Dick Cheney, will probably face legal trouble overseas if they avoid prosecution in the United States.

    “Torture is an international crime irrespective of the place where it is committed. Other countries have an obligation to investigate,” Scheinin said in a telephone interview from Cairo. “This may be something that will be haunting CIA officials, or Justice Department officials, or the vice president, for the rest of their lives.”

    Manfred Nowak, another senior U.N. official who investigates torture accusations, said the Obama administration is violating terms of the U.N. Convention Against Torture by effectively granting amnesty to CIA interrogators. He said the United States, as a signatory to the treaty, is legally obligated to investigate suspected cases of torture. He also said Washington must provide compensation to torture victims, including al-Qaida leaders who were waterboarded.

    “One cannot buy the argument anymore that this does not amount to torture,” he said. “These memos are nothing but an attempt to circumvent the absolute prohibition on torture.” Nowak, an Austrian law professor based in Vienna, acknowledged that there is no mechanism in the anti-torture treaty to punish governments that ignore its provisions. From a political standpoint, he said, it is more important for the White House or Congress to authorize an independent commission to conduct a public examination of how terrorism suspects were treated after the Sept. 11, 2001, attacks.

    “I still have full trust in the Obama administration to do the right thing,” he said in a telephone interview from Bangkok. “It is more important for the United States to overcome a dark chapter in its history.” On Tuesday, Obama for the first time raised the possibility of creating a bipartisan commission to examine the Bush administration’s handling of terrorism suspects. He also said he would leave it up to Attorney General Eric H. Holder Jr. to determine whether to prosecute senior officials who approved waterboarding and other tactics.

    Several CIA and Bush administration officials have been targeted for prosecution in Europe, though the cases have generally not progressed very far.

    In Spain, a human rights group is pushing prosecutors to investigative six senior Bush administration officials for allegedly sanctioning the torture of prisoners at Guantanamo Bay, Cuba. Last week, Spanish prosecutors recommended dropping the case after Attorney General C andido Conde-Pumpido called it a politicized attempt to turn Spanish courts “into a plaything.” A Spanish judge will make the final decision.

    In Germany, human rights groups have tried to bring charges against former U.S. defense secretary Donald Rumsfeld over the abuse of Iraqi prisoners at the Abu Ghraib facility. Germany’s federal prosecutor has twice rejected the case, but supporters have appealed in court.

    Wolfgang Kaleck, a Berlin lawyer who helped file the complaint against Rumsfeld, said that such cases have failed largely because European courts have ruled that they should be handled in U.S. courts instead. That could change, he said.

    “Everybody prefers that prosecutions take place in the U.S.,” he said. “But if nothing happens there, then that’s the end of the legal argument to dismiss these cases in Europe.” John B. Bellinger III, who was legal adviser to then-Secretary of State Condoleezza Rice, said European governments will face a worsening legal and political dilemma if human rights groups redouble their efforts to pursue criminal investigations of U.S. officials.

    “They realize this will put them in a very difficult position,” said Bellinger, now a partner at the law firm Arnold & Porter in Washington. “They will be under pressure from civil liberties groups and some European parliamentarians not to oppose these cases. But if they allow them to go forward, they know it could strain their relationship with the Obama administration, which says it wants to look forward, not back.” Additionally, European governments are unlikely to favor the prosecution of U.S. officials under universal-jurisdiction statutes for practical reasons, he said. For instance, U.S. officials facing charges or indictment could no longer travel to Europe without facing the risk of arrest, a situation that could spiral out of control diplomatically.

    “It just sets a bad precedent,” he said. “Current and former government officials have to be able to travel. Once you allow one or two of these cases, it could really open the floodgates to actions against officials of many countries.”
    (Copyright the author or news media.)

    http://www.denverpost.com/headlines/ci_12196651

  4. msrb said

    Revealing the Secrets in Room 101
    By Scott Horton

    http://www.harpers.org/archive/2009/04/hbc-90004803

  5. […] Comments msrb on Spanish prosecutors will inves…msrb on Spanish prosecutors will inves…Freddie Mac finance … on Madoff: A Goldmine […]

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