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Spain investigates what America should
By Marjorie Cohn, San Francisco Chronicle
[An opposing view follows.]
A Spanish court has initiated criminal proceedings against six former officials of the Bush administration. John Yoo, Jay Bybee, David Addington, Alberto Gonzales, William Haynes and Douglas Feith may face charges in Spain for authorizing torture at Guantánamo Bay.
If arrest warrants are issued, Spain and any of the other 24 countries that are parties to European extradition conventions could arrest these six men when they travel abroad.
Does Spain have the authority to prosecute Americans for crimes that didn't take place on Spanish soil?
The answer is yes. It's called "universal jurisdiction." Universal jurisdiction is a well-established theory that countries, including the United States, have used for many years to investigate and prosecute foreign nationals for crimes that shock the conscience of the global community. It provides a critical legal tool to hold accountable those who commit crimes against the law of nations, including war crimes and crimes against humanity. Without universal jurisdiction, many of the most notorious criminals would go free. Countries that have used this as a basis to prosecute the most serious of crimes should be commended for their courage. They help to create a just world in which we all seek to live.
Israel used universal jurisdiction to prosecute, convict and execute Adolph Eichmann for his crimes during the Holocaust, even they had no direct relationship with Israel.
A federal court in Miami recently convicted Chuckie Taylor, son of the former Liberian president, of torture that occurred in Liberia. A U.S. court sentenced Taylor to 97 years in prison in January.
Universal jurisdiction complements, but doesn't supersede, national prosecutions. So if the United States were investigating the Bush officials, other countries would refrain from doing so.
When the United States ratified the Convention Against Torture, it promised to extradite or prosecute those who commit, or are complicit in, the commission of torture.
President Obama, when asked whether he favored criminal investigations of Bush officials, replied, "My view is also that nobody's above the law and, if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen."
"But," he added, "generally speaking, I'm more interested in looking forward than I am in looking backward." Preoccupied with the economy and two wars, Obama reportedly wants to wait before considering prosecutions that would invariably anger the GOP.
Evidence that Bush officials set a policy that led to the torture of prisoners at Guantánamo continues to emerge.
According to ABC News, Gonzales met with other officials in the White House and authorized torture, including waterboarding.
The Office of Professional Responsibility, which reports to the U.S. attorney general, drafted a report that excoriates Yoo and Bybee for writing the infamous torture memos. Haynes, Addington and Feith participated in decisions that led to torture. The release of additional graphic torture memos by the U.S. Department of Justice is imminent.
It is the responsibility of the United States to investigate allegations of torture. Almost two-thirds of respondents to a USA Today/Gallup Poll favor investigations of the Bush team for torture and warrantless wiretapping. Nearly four in 10 support criminal investigations.
Former Navy General Counsel Alberto Mora told Congress, "There are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq - as judged by their effectiveness in recruiting insurgent fighters into combat - are, respectively the symbols of Abu Ghraib and Guantánamo." Providing impunity to those who ordered the torture will be the third recruiting tool.
If the United States refuses to investigate now, it will be more likely that some future administration will repeat this scenario. The use of torture should be purged from our system, much like we eradicated slavery.
Marjorie Cohn is a professor at the Thomas Jefferson School of Law and president of the National Lawyers Guild. She is the author of "Cowboy Republic: Six Ways the Bush Gang Has Defied the Law," and co-author of "Rules of Disengagement: The Politics and Honor of Military Dissent."
Are U.S. officials potential Spanish prisoners?
April 6, 2009
Just when former Bush administration officials thought they could relax and perhaps travel a bit comes the disconcerting news that a Spanish court is considering charges against former Attorney General Alberto Gonzales and five other former government officials for the design of alleged torture at Guantánamo Bay. Although the risk of Gonzales, UC Berkeley Professor John Yoo, Chevron Counsel William Haynes and the others actually standing trial is small, if charges are brought, then they'll put away their passports to avoid arrest abroad.
The larger concern is the giant stretching sound I hear when international law is used to allow a court in Spain to consider charges against former American officials for something that happened 5,000 miles from the Spanish courthouse steps.
Coming on the heels of the International Criminal Court prosecutor announcing he was contemplating an investigation of Israel for alleged war crimes in Gaza, when neither Israel nor the Palestinian Authority is a member of the court or subject to its jurisdiction, it looks as if we're on the verge, as Henry Kissinger once warned, of substituting the tyranny of judges for that of governments.
International law is not "law" in the sense that Americans understand the term. With no constitution or world body to establish and enforce a law, it is more like a series of norms to which nations may agree and aspire. Increasingly it has also become a tool of global politics that nations lacking economic, military or diplomatic power seek to expand and deploy creatively, hoping to tie down the Gulliver-like larger states. For many nations , including the United States, it quickly becomes a trade-off with national sovereignty, especially if any court in the world believes it can take up a case against your citizens.
Consider several stretches of international law required for a Spanish court to bring such a case:
-- Courts rightly limit their jurisdiction to crimes that occur within their territory or, in certain cases, involve their citizens. But some nations have passed laws purporting to give their courts universal jurisdiction over genocide and war crimes on the ground that they are so serious any court can take jurisdiction. Belgium tried to become the world's courtroom on that basis but finally pulled back to crimes that touched Belgium in a significant way. Universal jurisdiction is not a strong or widely accepted basis for court action, absent a showing that Spanish citizens were tortured.
-- Charging lawyers who advised on the legal structure of Guantánamo policies, rather than those who carried out or supervised the alleged torture, is also a big stretch. Since when is giving advice or designing government programs an actionable crime? Do we really want to discourage government officials from counseling with their attorneys on the legal dimensions of proposed policies?
Questions about the treatment of prisoners or detainees are really international diplomatic, military and security issues, not local criminal matters. Although cloaked in the language of morality and law, these charges are more about geopolitical power and politics and belong at the United Nations, not in a criminal court in Madrid.
The real story here is an effort by political actors, including less powerful Western European nations and activist human rights groups, to shift complex political battles from diplomatic or military action to courtrooms through the expansion of international law. The Bush administration simply said "no" to these initiatives, including the International Criminal Court, rightly recognizing that they are incursions on national sovereignty and efforts to check U.S. power and influence.
This will be tricky business for President Obama, who has said, in the past, he favors collaboration with the International Criminal Court, in part to improve relations abroad. And his nominee for the influential role of State Department legal adviser, Yale Law Dean Harold Koh, has a worrisome record on this, having written that the United States joins North Korea and Iraq in the "axis of disobedience" of international law. The fact is that international law is essentially what countries agree it is through treaties and other means, so the United States can't afford for Obama to be too agreeable.
You may have heard of "the Spanish Prisoner," an old confidence trick made into a con-game movie with Steve Martin. Let's hope the United States resists this latest political trick by the Spanish courts.
David Davenport is a research fellow at the Hoover Institution.