The Spanish magistrate Baltasar Garzón is now reported to be opening a preliminary investigation to the acts involved in creating the Guantánamo Bay prison camp where the Bush administration held hundreds of alleged terror suspects without charge for up to 7 years. The investigation will target “any of those that executed and/or designed a systematic plan of torture or cruel, inhuman, and degrading treatment of the prisoners [at Guantánamo] that were under their custody”.
According to the Christian Science Monitor:
Sources familiar with the case say that pressures by the Spanish government to slow or stop Garzón are intense, and that Spanish justice officials and even Garzón himself would prefer that the US administration carry out a serious investigation in line with the requirements of the 1984 Convention on Torture (of which the US is a signatory), which demands such an inquiry.
The case is linked to the prosecution of 5 alleged terror conspirators of Spanish nationality or documentation that were held at the camp. Claims the 5 had experienced torture while detained at the US military base in Cuba, under orders from top officials in the Bush administration, led to the announcement of a potential indictment of 6 Bush administration officials alleged to have been conspirators in a plot to circumvent US and international law and establish a regime of torture at the base and elsewhere.
The AFP reported yesterday that:
A Spanish judge on Wednesday opened an investigation into an alleged “systematic programme” of torture at the US Guantanamo Bay detention camp, following accusations by four former prisoners.
Judge Baltasar Garzon will probe the “perpetrators, the instigators, the necessary collaborators and accomplices” to crimes of torture at the prison at the US naval base in southern Cuba, he said in his ruling, a copy of which was seen by AFP.
There is pressure to avoid inflaming international tensions by prosecuting members of an allied government, but the Spanish legal system allows for investigations such as this to proceed, where there is no credible effort to prosecute major crimes committed by public officials in their country of origin. As the US government has not initiated any criminal proceedings against those who might be liable for the alleged torture, Garzón sees himself obliged to seek justice under relevant Spanish laws of ‘universal jurisdiction’.
From the moment he took office, Pres. Obama has been pressed by a significant segment of the voting bloc that elected him to prosecute those responsible for the extra-legal prison system in which it is alleged prisoners were subject to torture and ‘inhuman treatment’. The president has been steadfast on this as on other points of political principle, sticking to his assertion that it would be best to “turn the page” and work on solving the crisis-level problems now facing the nation and the world.
But there is also growing pressure at home to investigate what took place. Former US vice president Dick Cheney has been aggressively mounting an intellectual defense for his involvement in the interrogations regime he helped to fashion, claiming he can prove that “enhanced interrogations” were “effective” and prevented terrorist attacks.
In order to demonstrate this, he wants two specific classified reports to be released, but his request has been met with claims it would set a precedent for releasing all materials related to the Bush-era ‘war on terror’. And perhaps worse yet, for Cheney’s defense, the FBI has said cases where torture and useful information coincided were cases where the useful information emerged from legal non-violent interrogations, and torture was used later, to no avail.
There is also the fact that even some Republican officials are now using the word ‘torture’ for what took place under the Bush administration’s version of the ‘war on terror’, the most controversial elements of which have been banned by Pres. Obama. And the buzz in Washington is increasingly oriented toward the question of “who will take the fall for torture”, not whether it occurred.
Garzón’s filing raises the stakes on those seeking inquiries in the US Congress. There is legislation which has not yet been presented for debate or a vote, which would establish a kind of “truth commission”, or “9/12 commission”, aimed at revealing all the details of what took place to plan the departure from US Constitutional due process that was instituted in the wake of the terror attacks on New York, Washington, and Pennsylvania, on 11 September 2001.
Congressional hearings of the truth commission variety would likely carry a promise of immunity in exchange for testimony, but international law scholars have suggested neither the president nor the Congress have the authority to grant immunity for torture. The US refused to accept the “following orders” defense in its landmark prosecutions of Nazi and Japanese imperial war criminals, after World War II, and international law requires that all acts of torture be prosecuted in full.
An important clause of the US Constitution, often ignored in public debate on international law, but vital in the Constitution’s defense of democratic principles taking priority over the power of individual officials, is the 2nd paragraph of Article VI, which reads:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
So, far from being an undemocratic affront to the sovereignty of the American government, requiring that government officials obey international law was considered by the nation’s founders to be fundamental to establishing a government guided by the rule of law, and to the legitimacy of that government’s international reach in shaping a more democratic international community.
In essence, those who circumvented international law claiming ‘defense of democracy’ may see themselves prosecuted, at home or abroad, for violating international treaties that the framers of the US Constitution viewed as laws that ‘make the world safe for democracy’. Garzón’s actions, in line with US Constitutional law, are intended, most likely, as a nudge to US officials to open a substantive criminal probe into extraordinary rendition, undisclosed detention and enhanced interrogation.
The UK’s Guardian newspaper has reported:
“Mistakes were made” in the creation of the Guantánamo programme, [US Attorney General] Holder said. “Obviously, we would look at any request that would come from a court in any country and see how and whether we should comply with it.”
“This is an administration that is determined to conduct itself by the rule of law and to the extent that we receive lawful requests from an appropriately created court, we would obviously respond to it,” he said.
One piece of the jurisdictional puzzle that is not often cited in US reports on Garzón’s recent moves to investigate torture is the alleged complicity of the Spanish government under then-leader of the governing Partido Popular José María Aznar, an enthusiastic backer of the Iraq war. Aznar is allged to have conspired to allow CIA “ghost flights” to use Spanish airstrips for illegal transfer of prisoners without extradition hearings, as part of the “rendition” process.
Robert Marquand, writing for the Christian Science Monitor, notes:
“What this [Garzón] investigation shows is the incredibly difficult legacy that has been left by the Bush administration, acting at odds with international law,” Mr. Dworkin says. “Most governments in Europe are keen to improve relations with the US, to reset the relationship. The Spanish government hopes to see a credible investigation begin in the US. The Spanish attorney general has said the first responsibility is not with Europe but with the US.”
Though some US opinionmakers say the motions of one Spanish judge will have little impact, US diplomats are not as quick to dismiss them. Subpoenas and indictments would not only restrict travel as a practical matter for US officials, but the case itself could bring unforeseen dynamics both at home and abroad.
The grey area widens vastly, when one considers the problem of “playing politics”. Torture is a legal and political question, no doubt. But former Bush officials are keen to accuse anyone currently in office of “playing politics” if they seek to open criminal probes that could uncover nasty deeds and top secret information, while the current president would like to let his political fortunes depend on his actions, not on the accumulated ire of those who might still support his predecessor.
- Originally published 30 April 2009, at CafeSentido.com
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