Prosecute Them

by

by hilzoy

Scott Horton at the Daily Beast:

"Spanish prosecutors have decided to press forward with a criminal investigation targeting former U.S. Attorney General Alberto Gonzales and five top associates over their role in the torture of five Spanish citizens held at Guantanamo, several reliable sources close to the investigation have told The Daily Beast. Their decision is expected to be announced on Tuesday before the Spanish central criminal court, the Audencia Nacional, in Madrid. But the decision is likely to raise concerns with the human-rights community on other points: They will seek to have the case referred to a different judge.

The six defendants — in addition to Gonzales, Federal Appeals Court Judge and former Assistant Attorney General Jay Bybee, University of California law professor and former Deputy Assistant Attorney General John Yoo, former Defense Department general counsel and current Chevron lawyer William J. Haynes II, Vice President Cheney’s former chief of staff David Addington, and former Undersecretary of Defense Douglas J. Feith — are accused of having given the green light to the torture and mistreatment of prisoners held in U.S. detention in "the war on terror." The case arises in the context of a pending proceeding before the court involving terrorism charges against five Spaniards formerly held at Guantanamo. A group of human-rights lawyers originally filed a criminal complaint asking the court to look at the possibility of charges against the six American lawyers. Baltasar Garzon Real, the investigating judge, accepted the complaint and referred it to Spanish prosecutors for a view as to whether they would accept the case and press it forward. "The evidence provided was more than sufficient to justify a more comprehensive investigation," one of the lawyers associated with the prosecution stated. (…)

The Obama State Department has been in steady contact with the Spanish government about the case. Shortly after the case was filed on March 17, chief prosecutor Javier Zaragoza was invited to the U.S. embassy in Madrid to brief members of the embassy staff about the matter. A person in attendance at the meeting described the process as "correct and formal." The Spanish prosecutors briefed the American diplomats on the status of the case, how it arose, the nature of the allegations raised against the former U.S. government officials. The Americans "were basically there just to collect information," the source stated.The Spanish prosecutors advised the Americans that they would suspend their investigation if at any point the United States were to undertake an investigation of its own into these matters. They pressed to know whether any such investigation was pending. These inquiries met with no answer from the U.S. side."

As I have said before, we should investigate and prosecute members of the Bush administration who authorized torture. They have violated our own laws, and respect for the rule of law requires that holding high office does not get you off the hook when you knowingly break the law. But investigating and prosecuting people who authorize torture is also required under the Convention Against Torture, to which we are a signatory. It is not optional. It is not something that we can put aside because it would be too divisive.

It is a requirement of law, the law that the Constitution requires Obama, as President, to faithfully execute. He should not outsource his Constitutional obligations to Spain.

16 thoughts on “Prosecute Them”

  2. Spain can’t wash it’s own dirty laundry so it’s going to wash ours. Hypocrisy.
    “The debate about the Franco era had been brewing already, becoming one of the hallmarks of 2008.
    Judge Baltasar Garzon’s attempt to look into 114,000 alleged killings in acts of repression during the 1936-39 civil war and Franco’s ensuing 36-year dictatorship bitterly divided the nation, showing how difficult it still was for Spain to deal with the dictator’s legacy.
    Garzon finally dropped his inquiry, but the debate is far from over, and the case against Franco could end up in international courts. ”
    ref:http://www.expatica.com/es/news/local_news/Spain-split-over-attempts-to-investigate-Franco_s-crimes-_48335.html

  3. To think Obama would ever launch an investigation which could implicate the man he wanted as his Secretary of Defense, would make Obama look like a bad manager. And he may be indifferent to whether the US stops torturing people – but he’s not a bad manager. That a few hundred people may be living without hope in cages off in obscurity, isolated, tortured, and dying, is a price Obama seems to be willing they should pay for his acceptance by the US military. (See The Cabinet Comes Into View, November 22nd 2008)
    As I have said before, we should investigate and prosecute members of the Bush administration who authorized torture. They have violated our own laws, and respect for the rule of law requires that holding high office does not get you off the hook when you knowingly break the law.
    And yet: you wrote:

    Basically, I think that there are two main reasons for keeping Gates. The first is that it’s very important to get bipartisan cover for the withdrawal from Iraq if we want to avoid some future conservative “if only the Democrats had let us win” story. (Likewise, bipartisan cover would be very useful if Obama decides to cut some weapons systems.) The second is that by all accounts the military have a lot of respect for Gates; keeping him on, therefore, would allow Obama to bypass the need to establish his own credibility and that of his Secretary of Defense with them. (Yes, I know: this shouldn’t be necessary. But it is.)

    The best Gates can hope for is for reasonable doubt to be established that he was genuinely ignorant of the torture being committed by the US military while he was Secretary of Defense. If prosecuting torture matters, does it matter more than the two reasons you gave? Or less? Or is it something that just shouldn’t be mentioned when talking about political pragmatic decisions – it’s just an airy idealistic hope, not a real factor to be included when making political, pragmatic decisions?
    If Obama wants to maintain continuity in the US military, and be respected by them, how can he do that in combination with launching a full-scale investigation into who committed torture, who ignored torture, who refused to listen to soldiers attempting to report torture? That’s the kind of discussion I wish was happening. Obama’s selection of Gates was a pragmatic, US-military-pleasing decision: it was the first clear clue that he would not be investigating the acceptance and practice of torture by the US military.
    On May 11th, Clive Stafford Smith, who is representing Binyam Mohamed, will face trial for sending President Obama evidence that a secret committee in the Pentagon does not wish the Commander in Chief to know about the practice of torture in the US military.

  4. I just want our dirty laundry washed and don’t care who does it as long as they do a good job. I agree with Jesurgislac that it seems very unlikely that the President will launch any meaningful investigations of torture. Mr. O appears very concerned about having the good opinion of the establishment, which clearly wants us to “move forward” and not look back at the crimes we’ve committed. Unless and until that changes, I welcome even hypocritical outsiders trying to expose this stuff to the light of day.

  5. What I find interesting is how uniformly vague the news accounts are.
    1) These six Spanish citizens? When were they detained and where were they detained from? I can’t find a single article that even mentioned any of their names.
    2) What type of interrogation techniques were actually used against these specific detainees?
    From reading the articles, it seems the case hinges on not anything the six attorneys actually did, not anything anyone they supervised did, and not anything any member of the US military did. Instead it seems to focus on what possibly could have been done based on the things they wrote.
    It is a sad say for the human race when instead of totalitarian regimes, overeager prosecutors from western democracies attempt to make use of International law in order to suppress debate and thought on controversial issues.
    Personally, I have faith that President Obama and his administration have not succumbed to the pressure of foreign and domestic transnationalists in order to participate in this travesty of justice.

  6. Re the accountability point made by Mr. Pate, these guys didn’t write op-ed pieces expressing their “thoughts” on torture or participate in a “debate” on the issue. They wrote memoranda authorizing the US government to torture detainees. If the Spanish prosecutors can draw a plausible line of causation between what happened to their own nationals and what these gentlemen authorized, then I don’t think a “travesty of justice” has occurred.

  7. ddddave–
    I’d support a US investigation into the killings of the Franco era. The US is often quite eager to investigate the war crimes of its enemies, so maybe we should do the same for a few friends. And they can investigate us,no one investigates themselves, and everyone is happy.

  8. New York Times, June 2006:

    Judge Garzón, who has spent nearly two decades investigating and building criminal cases against terrorist networks in Spain, underscored his point by citing his own country’s dark past. Only in the last few years has Spain begun to confront the terror of the 1936 army uprising and civil war that brought Gen. Francisco Franco to power and ushered in four decades of dictatorship.
    “In Spain, we also practiced torture and the forced disappearance of people,” he said. “When the temptation came, we succumbed to it.”
    …..
    In remarks made during the conference itself, sponsored by New York University law school’s Center on Law and Security, Judge Garzón cited his own experience with what he called the failure of the Guantánamo system. The United States held Hamed Abderrahman Ahmed, a Spanish citizen who had trained at a Qaeda camp in Afghanistan, there for two years before granting Judge Garzón’s request to extradite him to Spain. He was eventually sentenced to six years in prison for membership in a terrorist group — but not with the help of any evidence built at Guantánamo.
    “Everything obtained from there was useless because it went against the rules,” Judge Garzón said.

  9. Spain can’t wash it’s own dirty laundry
    Neither, apparently, can we.
    It is a sad say for the human race when instead of totalitarian regimes, overeager prosecutors from western democracies attempt to make use of International law in order to suppress debate and thought on controversial issues.
    I don’t think “debate and thought on controversial issues” is what they are charged with.
    IMO it’s a sad day for the human race when a nation that claims, as its reason for existence, to respect and defend basic human rights not only tolerates, but places in positions of the highest responsibility, people who openly advocate torture.
    It’s a sad day for, perhaps not the human race, but this country when we can’t call things by their proper names.
    It’s not a “controversial issue”, it’s torture. And the folks in question weren’t engaging in “debate and thought”, they were establishing a fraudulent legal justification for it’s practice.
    They deserve to answer for their writings and actions in court. If we can find the spine to clean our own mess, all the better. If not, the international courts are obligated to do so for us.

  10. Spain can’t wash it’s own dirty laundry so it’s going to wash ours. Hypocrisy.
    Funny, I can’t imagine you reacting well to someone dredging up ancient US history to dispute otherwise-justified US actions. Nor to some other country torturing US citizens without a trial. I can just imagine some combination of the two- Yemen tortures two missionaries accused of proselytizing, and d’d’dave attacks US attempts for justice, pointing out Sacco and Vanzetti. “hypocrisy!” he cries.
    I don’t know when the standard for international action become “never having committed a bad act in the past”; it’s like a defendant in a murder trial invoking John 8 (“let he who is without guilt throw the first stone”). I would guess that this became your standard about the time it became convenient. It will stop being the standard about the time in becomes inconvenient. Or perhaps this is another variety of American exceptionalism- other countries must be perfect before doing anything, but the US suffers under no such burden.
    btw, from your link: The office argued that Garzon did not have jurisdiction over crimes, which had been covered by a 1977 amnesty granted to Franco’s collaborators. With Garzon’s own court expected to side with the prosecutors, the judge finally abandoned his inquiry on the grounds that the suspects were dead.
    Yeah, sounds like exactly the same thing, they really ought to deal with prosecuting these dead people who were granted amnesty before prosecuting live people who tortured their own citizens.

  11. I’m not ready to indict Obama for his inaction in bringing torturers to justice until the confirmation process is further along. He needs to get his Justice Department staffed before he can deal with these issues in an appropriate manner.

  12. “Garzon finally dropped his inquiry, but the debate is far from over, and the case against Franco could end up in international courts.”
    What’s that got to do with investigating U.S. torture?
    The U.S. could pre-empt any international investigation by launching its own investigation. We are bound by the Convention On Torture, a treaty we wrote and signed, to investigate cases of torture. If a country declines to investigate itself, other countries are authorized to investigate. That’s the law of our land.

    […] Article 12
    Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee in any territory under its jurisdiction.
    […]
    Article 17
    1. There shall be established a Committee against Torture (hereinafter referred to as the Committee) which shall carry out the functions hereinafter provided. The Committee shall consist of 10 experts of high moral standing and recognized competence in the field of human rights, who shall serve in their personal capacity. The experts shall be elected by the States Parties, consideration being given to equitable geographical distribution and to the usefulness of the participation of some persons having legal experience.
    […]
    # If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation or any other statement in writing clarifying the matter which should include, to the extent possible and pertinent, references to domestic procedures and remedies taken, pending, or available in the matter.
    # If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee by notice given to the Committee and to the other State.
    # The Committee shall deal with a matter referred to it under this article only after it has ascertained that all domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.
    […]
    # The Committee shall not consider any communication from an individual under this article unless it has ascertained that:
    1. The same matter has not been, and is not being examined under another procedure of international investigation or settlement;
    2. The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.

    If you don’t want the U.S. to be investigated by another State, or the International Committee Against Torture, then call for a U.S. inquiry, and there won’t be any investigation by other parties.
    That’s the law.

  13. @Michael K. Pate:
    It’s five Spanish citizens who were tortured; there are six defendants — U.S. attorneys who illegally provided opinions intended to give legal cover for authorizing torture.
    I hope you are not suggesting that charges will be brought without naming the specific people, times, and places involved in the crime. As Scott Horton’s report states, the U.S. State Department has been fully briefed on the case.
    Once the charges are filed, I imagine it will be easier to name each of the former Guantanamo prisoners on whose torture by U.S. personnel they are based. But I feel confident in saying that one of them is Lahcen Ikassrien, Guantanamo prisoner #27. He was tortured (beaten and burned with cigarettes) at the U.S. military prison in Kandahar in late 2001, where a soldier put a tag around his ankle that read “Animal Number 64”. He was in one of the first groups of prisoners sent to Guantanamo in January 2002 (as his low GTMO prisoner number indicates). He was tortured in Guantanamo beginning during the summer of 2002.
    That is, before the memos written and signed by defendants Yoo and Bybee purporting to “legalize” torture were created, and after defendant and then-WH Counsel Alberto Gonzales encouraged his client George Bush to declare that none of the prisoners taken in Afghanistan were covered by the Geneva conventions.

  14. Garzon finally dropped his inquiry, but the debate is far from over, and the case against Franco could end up in international courts.
    “Our top story tonight: General Francisco Franco is still dead!”
    Yurggh, am I THAT old?!

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