War Crimes Trials?
Spanish judge to hear torture case against six Bush officials
Legal moves may force Obamaâ€™s government into starting a new inquiry into abuses at GuantÃ¡namo Bay and Abu Ghraib
Criminal proceedings have begun in Spain against six senior officials in the Bush administration for the use of torture against detainees in GuantÃ¡namo Bay. Baltasar GarzÃ³n, the counter-terrorism judge whose prosecution of General Augusto Pinochet led to his arrest in Britain in 1998, has referred the case to the chief prosecutor before deciding whether to proceed.
The case is bound to threaten Spainâ€™s relations with the new administration in Washington, but Gonzalo BoyÃ©, one of the four lawyers who wrote the lawsuit, said the prosecutor would have little choice under Spanish law but to approve the prosecution.
â€œThe only route of escape the prosecutor might have is to ask whether there is ongoing process in the US against these people,â€ BoyÃ© told the Observer. â€œThis case will go ahead. It will be against the law not to go ahead.â€
The officials named in the case include the most senior legal minds in the Bush administration. They are: Alberto Gonzales, a former White House counsel and attorney general; David Addington, former vice-president Dick Cheneyâ€™s chief of staff; Douglas Feith, who was under-secretary of defence; William Haynes, formerly the Pentagonâ€™s general counsel; and John Yoo and Jay Bybee, who were both senior justice department legal advisers.
Court documents say that, without their legal advice in a series of internal administration memos, â€œit would have been impossible to structure a legal framework that supported what happened [in GuantÃ¡namo]â€.
BoyÃ© predicted that GarzÃ³n would issue subpoenas in the next two weeks, summoning the six former officials to present evidence: â€œIf I were them, I would search for a good lawyer.â€
If GarzÃ³n decided to go further and issued arrest warrants against the six, it would mean they would risk detention and extradition if they travelled outside the US. It would also present President Barack Obama with a serious dilemma. He would have either to open proceedings against the accused or tackle an extradition request from Spain.
Obama administration officials have confirmed that they believe torture was committed by American interrogators. The president has not ruled out a criminal inquiry, but signalled he is reluctant to do so for political reasons.
â€œObviously weâ€™re going to be looking at past practices, and I donâ€™t believe that anybody is above the law,â€ Obama said in January. â€œBut my orientationâ€™s going to be to move forward.â€
Philippe Sands, whose book Torture Team first made the case against the Bush lawyers and which BoyÃ© said was instrumental in formulating the Spanish case, said yesterday: â€œWhat this does is force the Obama administration to come to terms with the fact that torture has happened and to decide, sooner rather than later, whether it is going to criminally investigate. If it decides not to investigate, then inevitably the GarzÃ³n investigation, and no doubt many others, will be given the green light.â€
Germanyâ€™s federal prosecutor was asked in November â€˜06 to pursue a case against Donald Rumsfeld, Gonzales and other officials for abuses committed in GuantÃ¡namo Bay and Abu Ghraib prison in Iraq. But he declined on the grounds that the issue should be investigated in the US.
Legal observers say the Spanish lawsuit has a better chance of ending in charges. The high court, on which GarzÃ³n sits, has more leeway than the German prosecutor to seek â€œuniversal jurisdiction.â€
The lawsuit also points to a direct link with Spain, as six Spaniards were held at GuantÃ¡namo and are argued to have suffered directly from the Bush administrationâ€™s departure from international law. Unlike the German lawsuit, the Spanish case is aimed at second-tier figures, advisers to Bush, Cheney and Rumsfeld, with the aim of being less politically explosive.
The lawsuit claimed the six former aides â€œparticipated actively and decisively in the creation, approval and execution of a judicial framework that allowed for the deprivation of fundamental rights of a large number of prisoners, the implementation of new interrogation techniques including torture, the legal cover for the treatment of those prisoners, the protection of the people who participated in illegal tortures and, above all, the establishment of impunity for all the government workers, military personnel, doctors and others who participated in the detention centre at GuantÃ¡namo.â€
â€œAll the accused are members of what they themselves called the â€˜war councilâ€™,â€ court documents allege. â€œThis group met almost weekly either in Gonzalesâ€™s or Haynesâ€™s offices.â€
In a now notorious legal opinion signed in August 2002, Yoo and Bybee argued that torture occurred only when pain was inflicted â€œequivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.â€
Another key document cited in the Spanish case is a November 2002 â€œaction memoâ€ written by Haynes, in which he recommends that Rumsfeld give â€œblanket approvalâ€ to 15 forms of aggressive interrogation, including stress positions, isolation, hooding, 20-hour interrogations and nudity. Rumsfeld approved the document.
The 1984 UN Convention against Torture, signed and ratified by the US, requires states to investigate allegations of torture committed on their territory or by their nationals, or extradite them to stand trial elsewhere.
Last week, Britainâ€™s attorney general, Lady Scotland, launched a criminal investigation into MI5 complicity in the torture of Binyam Mohamed, a British resident held in GuantÃ¡namo.
The Obama administration has so far avoided taking similar steps. But the possibility of US prosecutions was brought closer by a report by the Senate armed services committee at the end of last year, which found: â€œThe abuse of detainees in US custody cannot simply be attributed to the actions of â€˜a few bad applesâ€™ acting on their own. The fact is that senior officials in the US government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorised their use against detainees.â€
None of the six former officials could be reached for comment yesterday. Meanwhile, Vijay Padmanabhan, a former state department lawyer, said the creation of the GuantÃ¡namo Bay detention camp was â€œone of the worst over-reactions of the Bush administration.â€