Sep 082009
  • The Spanish newspaper Público reported exclusively on
    Saturday that Judge Baltasar Garzón is pressing ahead with a case against six
    senior Bush administration lawyers for implementing torture at Guantánamo.

    Back in March, Judge Garzón announced that he was
    planning to investigate the six prime architects of the Bush administration’s
    torture policies — former Attorney General Alberto Gonzales; John Yoo, a former
    lawyer in the Justice Department’s Office of Legal Counsel, who played a major
    role in the preparation of the OLC’s notorious “torture memos”; Douglas Feith,
    the former undersecretary of defense for policy; William J. Haynes II, the
    Defense Department’s former general counsel; Jay S. Bybee, Yoo’s superior in
    the OLC, who signed off on the August 2002 “torture memos”; and David
    Addington, former Vice President Dick Cheney‘s Chief of Staff.

    In April, on the advice of the Spanish Attorney General
    Cándido Conde-Pumpido, who believes that an American tribunal should judge the
    case (or dismiss it) before a Spanish court even thinks about becoming
    involved, prosecutors recommended that Judge Garzón should drop his
    investigation. As CNN reported, Mr. Conde-Pumpido told reporters that Judge
    Garzón’s plans threatened to turn the court “into a toy in the hands of people
    who are trying to do a political action.”

    On Saturday, however, Público reported that Judge Garzón
    had accepted a lawsuit presented by a number of Spanish organizations — the
    Asociación Pro Dignidad de los Presos y Presas de España (Organization for the
    Dignity of Spanish Prisoners), Asociación Libre de Abogados (Free Lawyers
    Association), the Asociación Pro Derechos Humanos de España (Association for
    Human Rights in Spain) and Izquierda Unida (a left-wing political party) — and
    three former Guantánamo prisoners (the British residents Jamil El-Banna and
    Omar Deghayes, and Sami El-Laithi, an Egyptian freed in 2005, who was paralyzed
    during an incident involving guards at Guantánamo).

    The newspaper reported that all these groups and
    individuals would take part in any trial, which is somewhat ironic, as,
    although Judge Garzón has been involved in high-profile cases that have
    delighted human rights advocates — his pursuit of General Pinochet, for example
    — he has been severely criticized for his heavy-handed approach to
    terrorism-related cases in Spain (as in the cases of Mohammed Farsi and Farid
    Hilali, amongst others), and, in fact, aggressively pursued an extradition
    request for both Jamil El-Banna and Omar Deghayes on their return from
    Guantánamo to the UK in December 2007, in connection with spurious and
    long-refuted claims about activities related to terrorism, which he was only
    persuaded to drop in March 2008.

    It is, at present, uncertain whether another attempt to
    stifle Judge Garzón will derail him from his pursuit of the Bush
    administration’s lawyers, as he is not known for letting adversaries stand in
    his way. At the end of June, the Spanish Parliament pointedly passed
    legislation aimed at “ending the practice of letting its magistrates seek
    war-crime indictments against officials from any foreign country, including the
    United States,” on the basis that no Spanish Court should be able to judge
    officials of foreign countries except when the victims are Spanish or the
    crimes were committed in Spain.

    However, on Sunday, when Público spoke to Philippe Sands,
    the British lawyer, and author of Torture Team, which provided much of the first-hand
    evidence for Garzón’s case, Sands explicitly stated that there was “no legal
    barrier” to prevent Judge Garzón’s prosecution from proceeding. He explained
    that he believed the recent decision by US Attorney General Eric Holder to
    appoint a special investigator to investigate cases of torture by the CIA is
    related to the Spanish lawsuit and the importance it has acquired because of
    its instigation by Judge Garzón. Sands told Público, “The recent decision by
    Eric Holder emphasizes how appropriate the Spanish investigation is. Many
    commentators believe that this decision has had a significant and direct impact
    in the United States, reminding people that there is an obligation to
    investigate torture.”

    He added, “Judge Garzón’s actions have acted like a catalyst,
    and are supported by many people in the United States, including some members
    of Congress. He has reminded everybody that a blind eye cannot be turned to
    these actions and that there are people who are not going to let that happen.”
    He also explained that Eric Holder’s gesture is only a first step, “limited to
    cases in which interrogators may have exceeded the limits formally approved by
    lawyers in the Justice Department’s Office of Legal Counsel,” that the
    architects of the “legal decisions that purported to justify the use of torture
    are not in immediate danger in the United States,” and that there is,
    therefore, “no legal barrier to the continuation of the Spanish investigation.”

    He concluded by stating that it was “important” that
    Judge Garzón proceeds with the case in Spain, because, although Eric Holder
    “has confirmed the importance of the Convention Against Torture, he has taken
    only a first step that “does not really address the actions of those who were
    truly responsible for its violation.”

    Note: I wish to extend my thanks to Carlos Sardiña
    Galache for alerting me to the latest developments in this important story,
    which was not mentioned in the English-speaking press, and for translating
    crucial passages.

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