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.