[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
<http://www.thedailybeast.com/blogs-and-stories/2009-04-27/myth-and-reality-about-torture/>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,<http://www.thedailybeast.com/blogs-and-stories/2009-04-16/new-hope-for-the-bush-six/>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.
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:
<http://www.thedailybeast.com/blogs-and-stories/2009-04-27/myth-and-reality-about-torture/>Busting
the Torture Myths by Scott
<http://www.thedailybeast.com/blogs-and-stories/2009-04-27/myth-and-reality-about-torture/>Horton
URL:
<http://www.thedailybeast.com/blogs-and-stories/2009-04-29/prosecution-of-bush-six-back-on/p/>http://www.thedailybeast.com/blogs-and-stories/2009-04-29/prosecution-of-bush-six-back-on/p/
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