Scott Horton over at the Daily Beast reports that Spanish prosecutors are undertaking an investigation that may lead to the criminal indictment of six Bush Administration officials: Alberto Gonzales, John Yoo, Jay Bybee, David Addington, William Haynes, and Douglas Feith. Horton:
The six defendants. . .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 Guantánamo. 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 Garzón 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 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.
Oh boy. This is not good news for the Obama Administration.
Let me be clear here. I want to see these guys investigated, and if the evidence is there (which I believe it is), they should be prosecuted. I’d like nothing better than for Patrick Fitzgerald to convene a grand jury, conduct an investigation, and throw the book at Addington, Yoo, and the rest. In fact, I’d encourage them to move beyond the Spanish list to include Bush, Cheney, Ashcroft, Tenet, and a few others.
Furthermore, as Hilzoy points out, the United States is a party to the Convention on Torture, which obligates the United States to prosecute those accused of committing torture. None of the existing U.S. reservations or understandings excludes the possibility of the U.S. prosecuting its own citizens for torture — in large part because no one in their right mind ever imagined that torture would become U.S. policy. Oh, and one other thing: torture is also against the law here in the United States, so even if the CAT didn’t apply, the Obama Administration would still be obligated to enforce existing law.
So throw the book at them.
But please, let’s make sure it’s an American one.
I don’t think it advances American interests, human rights, or international justice for this investigation to go forward. If the Obama Administration is smart, it will send a very strong signal that this is a bad idea, that it is looking at options, and that the decision as to whether to prosecute Bush Administration officials is one that the U.S. criminal justice system — and not a Spanish court — should pursue.
There are several reasons I feel this way.
The first is the principle of complementarity, which since the International Criminal Court treaty entered into force, is international law. From the Rome Treaty:
[The] International Criminal Court. . .shall be complementary to national criminal jurisdictions. . . . [T]he Court shall determine that a case is inadmissible where. . .the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. . .
To be clear, this is a Spanish Court, not the ICC, and in fairness to the Spanish, they’ve made clear that they’ll step aside should the U.S. indicate an interest in pursing these guys. But the bottom line is that it’s not an active prosecution that is the baseline; it’s whether a state is unwilling or unable to prosecute.
This is a fundamentally different situation than other cases, such as the one involving the late and unlamented former dictator of Chile, Augusto Pinochet, who was prosecuted by the same Spanish court now investigating Bush Administration officials. Pinochet’s indictment came after repeated efforts to pursue cases in Chilean courts failed. In fact, it was only after Pinochet avoided prosecution and returned to Chile that Chilean officials were much more vigorous in their efforts to investigate and prosecute him for a variety of offenses.
Second, existing U.S. law reserves the right of the United States to prosecute American citizens accused of torture. Title 18, Part I, Chapter 113C, Section 2841A(b) of the U.S. Criminal Code states that
There is [U.S.] jurisdiction over [allegations of torture] if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
Both conditions apply to Addington et. al. Therefore the Spanish court should cede jurisdiction.
Third and perhaps most importantly, from a political perspective, this is an incredibly stupid thing to do to a new Administration that does not even have all its top legal experts in place. It puts the Obama Administration in a no-win situation, where it must either reject the Spanish effort to prosecute U.S. citizens accused of torture or allow a prosecution that will make its domestic and international agendas much more difficult.
If the Administration does the former, it will embolden human rights abusers the world over, who will argue that the United States is unwilling to go after its own violators. If it does the latter, it will embolden its domestic critics, who already are on the warpath about the judicial philosophies of several of its nominees.
Neither of those outcomes bring those responsible for designing the Bush-era policies any closer to justice. In fact, both would decrease significantly the chance that any serious effort to investigate the allegations and indict those responsible might happen someday.
The best course of action here is for the Spanish to announce that they are postponing their investigation in order to give the U.S. government the opportunity to examine whether evidence exists to pursue its own prosecution. At the same time, the Obama Administration should get behind the Patrick Leahy proposal for a commission modeled after the one that investigated U.S. decisionmaking leading up to 9/11 — not to forestall a prosecution but rather to find out whether there is enough information to pursue one.
There’s an old saying that justice delayed is justice denied. That’s true in most cases, but not all. Sometimes moving too quickly — or in the wrong venue — will harm a prosecution, not help it. The Spanish should keep this in mind as they decide their next step. And the Obama Administration needs to recognize that it no longer can pretend that ending the Bush Administration’s torture policies is not the same thing as investigating (and prosecuting) those responsible for them.
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