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Well I've Never Been to Spain, But I'd Love It If They'd Lock Bush Up, And They Might
Bush Torture Lawyers Targeted in Criminal Probe
By Scott Horton
One of America’s NATO allies—which supported the Bush Administration’s war on terror by committing its troops to the struggle–has now opened formal criminal inquiries looking into the Bush team’s legacy of torture. The action parallels a criminal probe into allegations of torture involving the American CIA that was opened this week in the United Kingdom.
Spain’s national newspapers, El País and Público reported that the Spanish national security court has opened a criminal probe focusing on Bush Administration lawyers who pioneered the descent into torture at the prison in Guantánamo. The criminal complaint can be examined here. Público identifies the targets as University of California law professor John Yoo, former Department of Defense general counsel William J. Haynes II (now a lawyer working for Chevron), former vice presidential chief-of-staff David Addington, former attorney general and White House counsel Alberto Gonzales, former Assistant Attorney General Jay Bybee, now a judge of the United States Court of Appeals for the Ninth Circuit, and former Undersecretary of Defense Doug Feith.
The case was opened in the Spanish national security court, the Audencia Nacional. In July 2006, the Spanish Supreme Court overturned the conviction of a former Spanish citizen who had been held in Guantánamo, labeling the regime established in Guantánamo a “legal black hole.” The court forbade Spanish cooperation with U.S. authorities in connection with the Guantánamo facility. The current criminal case evolved out of an investigation into allegations, sustained by Spain’s Supreme Court, that the Spanish citizen had been tortured in Guantánamo.
The Spanish criminal court now may seek the arrest of any of the targets if they travel to Spain or any of the 24 nations that participate in the European extraditions convention (it would have to follow a more formal extradition process in other countries beyond the 24). The Bush lawyers will therefore run a serious risk of being apprehended if they travel outside of the United States.
Judge Baltasar Garzón is involved in the investigation, according to the El País report. Garzón is Europe’s best known counterterrorism magistrate, responsible for hundreds of cases targeting the activities of ETA and related Basque terrorist organizations. He also spearheaded the successful investigation of Al Qaeda-affiliated terrorist organizations operating in the Maghreb region, including Spanish enclaves in Morocco. But Garzón is best known for his prosecution of a criminal investigation against Chilean dictator Augusto Pinochet that resulted in the issuance of an arrest warrant for Pinochet while he was visiting England.
La fiscalía examina la demanda criminal presentada ante Garzón contra el equipo jurídico de Bush. Los abogados esgrimen que la tortura es un delito contra la comunidad internacional.
PERE RUSIÑOL - MADRID - 28/03/2009 08:00
George W. Bush puede seguir descansando en Texas, pero deberá tener al menos un ojo puesto en España: un grupo de abogados ha presentado a la Audiencia Nacional la primera querella criminal contra algunos miembros de su Gabinete por el atropello de derechos básicos internacionales y torturas en la base de Guantánamo.
La querella, presentada el 17 de marzo, está ya en la mesa del juez Baltasar Garzón. Y aunque formalmente aún no la ha aceptado a trámite, ya ha tenido consecuencias: fuentes jurídicas explican que el juez ha emitido una providencia en la que pide a la fiscalía que examine la querella, que no va directamente contra Bush sino contra el equipo de abogados de la Casa Blanca y el Pentágono que construyó todo el andamiaje que justificó Guantánamo y el uso de la tortura en la "guerra contra el terrorismo".
La iniciativa fue registrada en la Audiencia Nacional el 17 de marzo
La querella está impulsada por cuatro abogados Gonzalo Boyé, Isabel Elbal, Luis Velasco y Antonio Segura con experiencia en causas de delitos contra la humanidad, que no se circunscriben al lugar donde se cometen sino que, por su gravedad, son perseguibles en todo el mundo. El equipo jurídico es el mismo que promovió la querella contra el ex ministro de Defensa israelí Binyamin Ben Eliezer por su responsabilidad en la muerte de los 14 civiles en un bombardeo en Gaza en julio de 2002. Esta última querella ya fue admitida a trámite por el juez de la Audiencia Nacional Fernando Andreu, lo que provocó la indignación del Gobierno israelí.
La nueva querella presentada obligará a la Audiencia Nacional a abordar el caso sobre Guantánamo en nombre de la jurisdicción universal al considerarse pisoteados principios fundamentales como el rechazo de la tortura. Pero los querellantes han encontrado una fórmula para encontrarle conexión también con España y reforzar así sus posibilidades: recuerdan que el juez Baltasar Garzón abrió procedimientos contra cinco personas por su presunta vinculación a una eventual célula española de Al Qaeda Lahcen Ikassrien, Hamed Abderrahman Ahmed, Reswad Abdulsam, Abu Anas y Omar Deghayes y que pasaron por Guantánamo. Los cinco fueron finalmente absueltos por el Tribunal Supremo al considerar precisamente que no podían tenerse en cuenta las declaraciones sonsacadas bajo tortura en Guantánamo.
Los letrados recuerdan que en el penal se torturó a españoles
Esta conexión es la que ha dado pie a Garzón a reabrir ese caso y a pedir a la fiscalía que se pronuncie sobre si la nueva querella lo altera en la medida en que habría que enjuiciar a los responsables de las torturas, que fueron determinantes para la sentencia. Ésta sería una vía para vehicular la querella. La otra sería admitirla a trámite como una causa independiente.
El único precedente a la querella presentada ante la Audiencia Nacional se dio en Alemania en 2006 y fue archivada. Pero en aquella ocasión se apuntaba directamente a lo más alto Bush y a su hombre en el Pentágono, Donald Rumsfeld y por acusaciones tan globales y filosóficas que acabó en nada.
La querella presentada ahora en Madrid es mucho más concreta y posibilista. No señala directamente al primerísimo nivel, sino a los juristas que elaboraron por escrito toda la doctrina que argumentaba que las normas internacionales del trato a los prisioneros debían suspenderse como consecuencia de la excepcionalidad de la "guerra contra el terror" emprendida tras el 11-S.
Los acusados son Alberto Gonzales, asesor de Bush cuando se diseñó la nueva política y posteriormente fiscal general; David Addington, consejero del vicepresidente, Dick Cheney; William J Haynes, consejero del Departamento de Defensa, que dirigía Donald Rumsfeld; Douglas Feith, subsecretario para asuntos legales de Defensa, Jay S. Bybee, asistente del fiscal general, y John Yoo, otro asistente jurídico del primer Gobierno de Bush, el que creó Guantánamo.
Expertos consultados ajenos a la querella subrayan que tiene muchas más posibilidades de prosperar que en Alemania precisamente porque no se apunta tan alto. Obviamente, dirigentes de más rango podrían incluirse si la causa finalmente se aceptara a trámite, como queda claro en la propia querella: "Sin perjuicio de las personas que posteriormente, y avanzada la investigación, puedan aparecer también como responsables de los hechos aquí expuestos".
Los mismos expertos recalcan otro elemento distinto con respecto a Alemania: la legislación española es mucho más abierta a investigar violaciones contra la ley internacional en todo el mundo, como ha quedado claro con los procesos abiertos contra dictadores latinamericanos, la guerra de los Grandes Lagos y la actuación israelí en Gaza, entre otros. En España, la legislación universal es absoluta, lo que hace mucho más fácil que se admita a trámite.
La querella aporta algunos memorandos internos recientemente desclasificados del equipo de juristas de Bush en el que se detalla la nueva política de situar la "guerra contra el terrorismo" al margen de los tratados internacionales suscritos por EEUU, como las Convenciones de Ginebra, en las que se regula el trato que debe darse a los detenidos, o la Convención contra la Tortura.
El documento, de casi 100 páginas, constituye una crónica exhaustiva de cómo la Administración de Bush armó un nuevo corpus legal que echó por la borda toda una tradición legalista de más de 200 años. Los documentos muestran que los asesores de Bush conocían la ley internacional y la violaban conscientemente, según los querellantes.
MADRID (AFP) – Prominent Spanish investigative judge Baltasar Garzon may order a probe into the American legal team which was behind the creation of the Guantanamo prison camp in Cuba, media reported on Saturday.
Garzon had asked prosecutors to look into a complaint filed against six members of the team, Publico newspaper said.
If he decides to open an investigation, it will be the first such legal action outside the United States, the private Cadena Sur radio said.
The Association for the Dignity of Prisoners, which filed the case, said the six should be taken to task for virtually authorising torture at the centre, where more than 800 men and teenagers have passed through since it opened in January 2002.
US President Barack Obama has vowed to close the camp within the next 12 months, and has ordered individual reviews of the cases against each of the remaining prisoners.
Spain operates under the principle of " ," a doctrine that allows courts to reach beyond national borders in cases of torture, terrorism or war crimes.
And from the New York Times:
LONDON — A high-level Spanish court has taken the first steps toward opening a criminal investigation against six former Bush administration officials, including former Attorney General Alberto R. Gonzales, on whether they violated international law by providing a legalistic framework to justify the use of torture of prisoners at Guantánamo Bay, Cuba, an official close to the case said.
The case was sent to the prosecutor’s office for review by Baltasar Garzón, the crusading investigative judge who ordered the arrest of the former Chilean dictator Augusto Pinochet. The official said that it was “highly probable” that the case would go forward and that it could lead to arrest warrants.
The move represents a step toward ascertaining the legal accountability of top Bush administration officials for allegations of torture and mistreatment of prisoners in the campaign against terrorism. But some American experts said that even if warrants were issued their significance could be more symbolic than practical, and that it was a near certainty that the warrants would not lead to arrests if the officials did not leave the United States.
The complaint under review also names John C. Yoo, the former Justice Department lawyer who wrote secret legal opinions saying the president had the authority to circumvent the Geneva Conventions, and Douglas J. Feith, the former under secretary of defense for policy.
The move was not entirely unexpected, as several human rights groups have been asking judges in different countries to indict Bush administration officials. One group, the Center for Constitutional Rights, had asked a German prosecutor for such an indictment, but the prosecutor declined.
Judge Garzón, however, has built an international reputation by bringing high-profile cases against human rights violators as well as international terrorist networks like Al Qaeda. The arrest warrant for General Pinochet led to his detention in Britain, although he never faced a trial. The judge has also been outspoken about the treatment of detainees at Guantánamo Bay.
Spain can claim jurisdiction in the case because five citizens or residents of Spain who were prisoners at Guantánamo Bay have said they were tortured there. The five had been indicted in Spain but their cases were dismissed after the Spanish Supreme Court ruled that evidence obtained under torture was not admissible.
The 98-page complaint, a copy of which was obtained by The New York Times, is based on the Geneva Conventions and the 1984 Convention Against Torture, which is binding on 145 countries, including Spain and the United States. Countries that are party to the torture convention have the authority to investigate torture cases, especially when a citizen has been abused.
The complaint was prepared by Spanish lawyers, who also relied on legal experts in the United States and Europe, and filed by a Spanish human rights group, the Association for the Dignity of Prisoners.
The National Court in Madrid, which specializes in international crimes, assigned the case to Judge Garzón. His acceptance of the case and referral of it to the prosecutor made it likely that a criminal investigation would follow, the official said.
Even so, arrest warrants, if they are issued, could still be months away.
Gonzalo Boye, the Madrid lawyer who filed the complaint, said that the six Americans cited had had well-documented roles in approving illegal interrogation techniques, redefining torture and abandoning the definition set by the 1984 Torture Convention.
Secret memorandums by Mr. Yoo and other top administration lawyers helped clear the way for aggressive policies like waterboarding and other harsh interrogation techniques, which the C.I.A. director, the attorney general and other American officials have said amount to torture.
The other Americans named in the complaint were William J. Haynes II, former general counsel for the Department of Defense; Jay S. Bybee, Mr. Yoo’s former boss at the Justice Department’s Office of Legal Counsel; and David S. Addington, who was the chief of staff and legal adviser to Vice President Dick Cheney.
Mr. Yoo declined to comment on Saturday, saying that he had not seen or heard of the petition.
Mr. Feith, who was the top policy official at the Pentagon when the prison at Guantánamo was established, said he did not make the decision on interrogation methods and was baffled by the allegations. “I didn’t even argue for the thing I understand they’re objecting to,” he said.
The other former officials either could not be reached Saturday or did not immediately respond to requests for comment. Their defenders have said their legal analyses and policy-making on interrogation practices, conducted under great pressure after the 2001 terrorist attacks, are now being unfairly second-guessed after many years without a terrorist attack on the United States.
But Mr. Boye said that lawyers should be held accountable for the effects of their work. Noting that the association he represents includes many lawyers, he said: “This is a case from lawyers against lawyers. Our profession does not allow us to misuse our legal knowledge to create a pseudo-legal frame to justify, stimulate and cover up torture.”
He said that Spanish citizens were tortured and that Spain, as a signatory of the Torture Convention, was obliged to pursue such a case.
Prosecutions and convictions under the Torture Convention have been rare.
Reed Brody, a lawyer at Human Rights Watch who has specialized in this issue, said that even though torture was widely practiced, there were numerous obstacles, including “a lack of political will, the problem of gathering evidence in a foreign country and the failure of countries to pass the necessary laws.”
This year for the first time, the United States used a law that allows for the prosecution in the United States of torture in other countries. On Jan. 10, a Miami court sentenced Chuckie Taylor, the son of the former Liberian president, to 97 years in a federal prison for torture, even though the crimes were committed in Liberia.
Last October, when the Miami court handed down the conviction, Attorney General Michael B. Mukasey applauded the ruling and said: “This is the first case in the United States to charge an individual with criminal torture. I hope this case will serve as a model to future prosecutions of this type.”
The United States, however, would be expected to ignore an extradition request for former officials, although other investigations within the United States have been proposed. Calls for the Justice Department to open a criminal investigation have so far been resisted by the Obama administration, but for more than four years, the Justice Department ethics office has been conducting its own investigation into the work of Mr. Yoo and some of his colleagues.
While the officials named in the complaint have not addressed these specific accusations, Mr. Yoo defended his work in an opinion column in The Wall Street Journal on March 7, warning that the Obama administration risked harming national security if it punished lawyers like himself.
“If the administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today’s intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future,” Mr. Yoo wrote.
And from Associated Press:
Spanish court considers trying former US officials
By PAUL HAVEN, Associated Press
MADRID, – A Spanish court has agreed to consider opening a criminal case against six former Bush administration officials, including former Attorney General Alberto Gonzales, over allegations they gave legal cover for torture at Guantanamo Bay, a lawyer in the case said Saturday.
Human rights lawyers brought the case before leading anti-terror judge Baltasar Garzon, who agreed to send it on to prosecutors to decide whether it had merit, Gonzalo Boye, one of the lawyers who brought the charges, told The Associated Press.
The ex-Bush officials are Gonzales; former undersecretary of defense for policy Douglas Feith; former Vice President Dick Cheney's chief of staff David Addington; Justice Department officials John Yoo and Jay S. Bybee; and Pentagon lawyer William Haynes.
Yoo declined to comment. A request for comment left with Feith through his Hudson Institute e-mail address was not immediately returned.
Spanish law allows courts to reach beyond national borders in cases of torture or war crimes under a doctrine of universal justice, though the government has recently said it hopes to limit the scope of the legal process.
Garzon became famous for bringing charges against former Chilean dictator Augusto Pinochet in 1998, and he and other Spanish judges have agreed to investigate alleged abuses everywhere from Tibet to Argentina's "dirty war," El Salvador and Rwanda.
Still, the country's record in prosecuting such cases has been spotty at best, with only one suspect extradited to Spain so far.
When a similar case was brought against Israeli officials earlier this year, Foreign Minister Miguel Angel Moratinos assured his Israeli counterpart that the process would be quashed.
Even if indictments are eventually handed down against the U.S. officials, it is far from clear whether arrests would ever take place. The officials would have to travel outside the United States and to a country willing to take them into custody before possible extradition to Spain.
The officials are charged with providing a legal cover for interrogation methods like waterboarding against terrorism suspects at Guantanamo, which the Spanish human rights lawyers say amounted to torture.
Yoo, for instance, wrote a series of secret memos that claimed the president had the legal authority to circumvent the Geneva Conventions.
President George W. Bush always denied the U.S. tortured anyone. The U.S. has acknowledged that Khalid Sheikh Mohammed, the self-described plotter of Sept. 11, and a few other prisoners were waterboarded at secret CIA prisons before being taken to Guantanamo, but the Bush administration insisted that all interrogations were lawful.
Boye said he expected the National Court to take the case forward, and dismissed concerns that it would harm bilateral relations between the two countries.
He said that some of the victims of the alleged torture were Spaniards, strengthening the argument for Spanish jurisdiction.
"When you bring a case like this you can't stop to make political judgments as to how it might affect bilateral relations between countries," he told the AP." It's too important for that."
Boye noted that the case was brought not against interrogators who might have committed crimes but by the lawyers and other high-placed officials who gave cover for their actions.
"Our case is a denunciation of lawyers, by lawyers, because we don't believe our profession should be used to help commit such barbarities," he said.
Another lawyer with detailed knowledge of the case told the AP that Garzon's decision to consider the charges was "a significant first step." The lawyer spoke on condition of anonymity because he was not authorized to talk to the media.
There was no immediate comment from Garzon or the government.
The judge's decision to send the case against the American officials to prosecutors means it will proceed, at least for now. Prosecutors must now decide whether to recommend a full-blown investigation, though Garzon is not bound by their decision.
The proceedings against the Bush Administration officials could be embarrassing for Spanish Prime Minister Jose Luis Rodriguez Zapatero, who has been keen to improve ties with the United States after frosty relations during the Bush Administration.
Zapatero is scheduled to meet President Barack Obama for the first time on April 5 during a summit in Prague.