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Spanish court considers prosecuting Bush officials

A group of lawyers accuses them of devising legal framework to allow torture at Guantanamo.

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.