Spanish Government Divided Over Indicting Bush Administration Torturers
By Sheila Casey / RCFP
An internationally renowned Spanish judge is attempting to prosecute six former Bush officials for their role in allowing torture at the US prison camp at Guantanamo Bay, Cuba. Despite being urged by the Spanish Attorney General to drop the case, Judge Baltasar Garzon has submitted the case to a lottery system which will now assign it at random to one of six high court judges. As one of those high court judges, Garzon has a one in six chance of getting the case back.
Spain has jurisdiction in the case because five Spanish citizens or residents claim to have been tortured at Guantanamo Bay.
The language used by Spanish Attorney General Conde-Pumpido, such as calling the case “fraudulent,” has led some observers to conclude that Conde-Pumpido bowed to pressure from the Obama administration. The AG also said: “If one is dealing with a crime of mistreatment of prisoners of war, the complaint should go against those who physically carried it out.”
US Attorney General Eric Holder said that he isn’t going to prosecute any Central Intelligence Agency employees who water-boarded suspects. Holder said that it would be unfair to prosecute those who actually carried out acts of torture because it was considered legal at the time by the Justice Department. Holder also said the US would defend the CIA torturers against attempted prosecutions from overseas.
The 1984 Convention Against Torture states: “An order from a superior officer or a public authority may not be invoked as a justification of torture…” Both Spain and the US are signatory to the Convention, which the US was involved in negotiating.
Judge Baltasar Garzon is well known as a fearless crusader against tyranny and torture. Garzon had Chilean dictator Augusto Pinochet served with an arrest warrant while he was visiting Britain in 1998. During 17 years in office, Pinochet ordered the murders of thousands of his political enemies and the torture and imprisonment of tens of thousands of others.
Pinochet was held under house arrest for over a year until British Home Secretary Jack Straw declared, based on a medical examination, that the former tyrant was brain damaged and unable to stand trial. Pinochet died in 2006 without ever being brought to justice.
The officials named in the Spanish complaint are former Attorney General Alberto R. Gonzales, former Undersecretary of Defense for Policy Douglas Feith, former Assistant Attorney General Jay Bybee, former Deputy Assistant Attorney General John Yoo, former Defense Department General Counsel William J. Haynes II, and Vice President Dick Cheney’s former legal counsel, David Addington.
Jay Bybee and John Yoo wrote the infamous torture memos, including the opinions that water-boarding isn’t torture, nor was anything torture, short of “death, organ failure or permanent impairment of a significant body function.” The Pentagon’s chief counsel, William J. Haynes, resigned after a magazine article accused him of rigging the trials of prisoners at Guantanamo Bay. Cheney’s chief counsel, David Addington, was a strong advocate of torture.
If the case lands with a judge who feels as strongly about torture as Garzon, the prosecution of these men will go forward. However, any convictions obtained could be essentially symbolic, as the US will not honor a request for extradition of former government officials.
The Obama administration has stated that it plans to continue to use rendition (kidnapping suspects and flying them to another country for torture or imprisonment). If Spain claimed for itself the same right to rendition that the US is claiming, we could see Bybee, Yoo or Addington kidnapped off an American street and into a Spanish prison.
Numerous Bush operatives have admitted that torture was committed, and the recently released torture memos make clear that prisoners, including children, were slapped, deprived of sleep for up to 11 days, subjected to stress positions, slammed against walls, water-boarded, and tortured with insects.
About water-boarding, the soon to be Attorney General Eric Holder said in January: “If you look at the history of the use of that technique, we prosecuted our own soldiers for using it in Vietnam… . Water boarding is torture.” President Obama has made clear that he has no intention of holding anyone accountable for torture, saying: “This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past….that is why we must resist the forces that divide us and, instead, come together on behalf of our common future.”
Evidently Obama believes that those who want torturers to pay for their crimes constitute “forces that divide us.” The case against the Bush 6 was initiated when a Spanish human rights group, the Association for the Dignity of Prisoners, filed a 98-page complaint with the National Court in Madrid, which specializes in international crimes. The court assigned the case to Judge Baltasar Garzon. Although the Spanish Attorney General recommended that the case be dropped, Garzon submitted it to a lottery system for another judge to continue.
The 1984 Convention against Torture states:
Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture… .
Article 15
Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
This language makes clear that signatories have not just the right, but the duty, to prosecute torture, that there are “no exceptional circumstances whatsoever” that can be used to justify torture, and that statements obtained as the result of torture cannot be used in a court of law.
Sheila Casey is a DC based journalist. Her work has appeared in The Denver Post, Reuters, Chicago Sun-Times, Dissident Voice and Common Dreams. She blogs at http://www.sheilacasey.com
