[News] Spanish Judge Garzon - Prosecution of Bush Six Back On

Anti-Imperialist News news at freedomarchives.org
Thu Apr 30 10:07:10 EDT 2009

Prosecution of Bush Six Back On
by Scott Horton
April 29, 2009 | 12:39pm

In a ruling in Madrid today, Judge Baltasar 
Garzón has announced that an inquiry into the 
Bush administration's 
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 
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.

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 (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.

Xtra Insight: 
the Torture Myths by Scott 


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