MADRID — A Spanish judge is considering opening a criminal case against six former Bush administration officials for violating international law by devising a legal framework to allow torture of prisoners at Guantanamo Bay.
The case alleges that the officials knew their actions violated international legal treaties signed and ratified by the United States, including the Geneva Conventions and the Convention Against Torture.
It accuses the officials, including former attorney general Alberto Gonzales, of using their expert legal knowledge “to provide coverage for criminal actions that would be committed against prisoners,” according to the document filed in the Audiencia Nacional, Spain’s national court.
The case is now under review by Baltasar Garzon, the judge who unsuccessfully tried to bring Chilean dictator Augusto Pinochet to trial in Spain.
Five Spanish residents or citizens were Guantanamo prisoners. Furthermore, Spain is claiming jurisdiction because its legal code allows for the universal prosecution of some crimes defined in international treaties and conventions.
This is not the first time that Spain's Audiencia Nacional has applied the concept of universal jurisdiction to try alleged crimes in other countries. It has also investigated cases that took place in Argentina, Guatemala, Tibet, El Salvador, Rwanda and others.
Spain’s National Court sent former Argentine navy officer Adolfo Scilingo to prison for murder, illegal detention and torture during the Argentine dictatorship. The court dropped its case against Ricardo Cavallo, another former Argentine military officer accused of torture and murder, when he was extradited to be tried in Argentina.
The court is currently investigating accusations of genocide in Tibet by Chinese officials, the murders of Jesuit priests by the Salvadoran military and accusations of genocide of the Mayans in Guatemala. It has indicted and ordered the arrest of 40 Rwandan military for genocide and terrorism (so far, the Rwandan government has not complied with the arrest warrant).
But Alicia Gil Gil, an expert in international law and a criminal law professor at the National University of Distance Education, questions how well the case against the Bush officials will hold up. Protocol II Additional to the Geneva Conventions allows for the universal prosecution of crimes in international conflicts only, she said, and she is not convinced that the case adequately establishes Guantanamo as an international conflict as opposed to an internal one.
The Spanish media reported Thursday that Attorney General Candido Conde-Pumpido said he will not support the National Court pursuing the case, arguing that if the alleged crime is abuse of prisoners, the case should be against the perpetrators. His decision is not binding. Judge Garzon could still decide to move the case forward.
Gil Gil said the attorney general's decision and the fact that the accusation is not brought by victims but rather by an "acusacion popular," or public prosecution, may narrow the case's chances for success. The suit was filed by a group of lawyers representing the Association Pro Dignity of Prisoners.
Gonzalo Boye, one of the lawyers who prepared the document, is hopeful Garzon will accept the case. If so, he said the scenario could be as follows: Judge Garzon would request the officials’ presence in Spain; if they did not come, an arrest warrant and extradition order could be issued.
If the officials do not leave the United States, it would be almost impossible to prosecute them. If they travel abroad, though, they could face arrest and extradition if they travel to a country that has an extradition treaty with Spain. Mexico and Canada, for example, have such treaties.
Ultimately, the decision is up to the government that would be extraditing the officials. Some countries, for example, refuse extradition if the detainee could face the death penalty in the country asking for extradition.
The 98-page document filed in court describes how objections by the legal departments of the Air Force, Navy, Army and the Marine Corps to 18 proposed new interrogation techniques were ignored. The concept of torture was redefined to permit these techniques, the document says.
To further support the alleged accusations, the document reasons that President Barack Obama’s executive order revoking Bush administration policies on the treatment of prisoners “confirms the existence of the legal framework to protect torture” and demonstrates that it was illegal.
The document points out that Article 2.2 of the Convention Against Torture states “no exceptional circumstances whatsoever” can justify torture. And it resolves, “Guantanamo does not constitute a 'judicial limbo' in any form, because it has never ceased being protected by international law and by the U.S. Constitution.”
The accusation concludes the actions of these U.S. officials provided those accused of terrorism with impunity, as evidence obtained at Guantanamo is not accepted in court. In Spain, two former Guantanamo prisoners charged with belonging to Al Qaeda, Hammed Abdurrahman and Lichen Ikassrien, were absolved and released when the courts said they could not use the interrogations obtained in Guantanamo because the defendants' fundamental rights had been violated.
The U.S. officials named in complaint are Gonzales; former Vice President Dick Cheney’s legal counsel David Addington; general counsel of the Department of Defense William J. Haynes; former undersecretary of defense for policy Douglas Feith; and Justice Department officials Jay S. Bybee and John Yoo.
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