Spanish Judge Baltasar Garzón on Holding Torturers Accountable, Why He Opposes the Killing of Osama bin Laden, and His Threatened Ouster from the Bench May 12, 2011Posted by rogerhollander in Criminal Justice, Torture.
Tags: al-Qaeda, Alberto Gonzales, amy goodman, baltasar garzon, Baltazar Garzon, bin Laden, bin laden assassination, chile dictatorship, Criminal Justice, democracynow, edward aguirre, feliape gonzalez, garcia lorca, general franco, Guantanamo, human rights, International law, juan gonzalez, lorca's grave, pinochet, roger hollander, salvador allende, Spain, Spanish Civil War, torture, universay jurisdiction, victor jara, War Crimes, wikileaks
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www.democracynow.org, May 12, 2011
Citing the doctrine of universal jurisdiction, Spanish judge Baltasar Garzón has used the Spanish courts to investigate cases of torture, war crimes and other offenses around the world. In 1998, he ordered the arrest of former Chilean dictator Augusto Pinochet, a move that led to Pinochet’s arrest and detention in Britain. In 2003, Garzón indicted Osama bin Laden and dozens of other members of al-Qaeda. Garzón later attempted to indict six high-ranking members of the Bush administration for their role in authorizing torture at the U.S. military prison at Guantánamo Bay and overseas, before the case was eventually dropped under U.S. pressure. While Garzón has long been one of the world’s most feared judges, he is now facing his own legal battle. Last year he was indicted for exceeding his authority for launching an investigation into the disappearance of more than 100,000 civilians at the hands of supporters of Gen. Francisco Franco during the Spanish Civil War. Garzón was suspended as a judge in May 2010 and is facing three separate trials.
JUAN GONZALEZ: We’re joined now by the Spanish judge Baltasar Garzón, perhaps one of the world’s most famous judges. Citing the doctrine of universal jurisdiction, Garzón has used the Spanish courts to investigate cases of torture, war crimes and other offenses around the world.
In 1998, he ordered the arrest of former Chilean dictator Augusto Pinochet, a move that had led to Pinochet’s arrest and detention in Britain for 18 months.
In 2003, Garzón indicted Osama bin Laden and dozens of other members of al-Qaeda. The indictment led to Europe’s biggest trial of alleged al-Qaeda operatives. Eighteen were eventually found guilty.
Garzón also led the case against Argentine ex-naval officer Adolfo Scilingo for crimes committed during Argentina’s Dirty War. Scilingo is now serving a 640-year sentence.
Garzón attempted to indict six high-ranking members of the Bush administration, including former Attorney General Alberto Gonzales, for their role in authorizing torture at Guantánamo and overseas. The case was eventually dropped. We now know, thanks to WikiLeaks, that the Bush administration privately pressured the Spanish government to drop the prosecution.
AMY GOODMAN: While Judge Garzón has long been one of the world’s most feared judges, he is now facing his own legal battle. Thirteen months ago, he was indicted for exceeding his authority for launching an investigation into the disappearance of more than 100,000 Spanish civilians at the hands of supporters of General Francisco Franco during the Spanish Civil War. Garzón was suspended as a judge in May 2010 and is facing three separate trials.
The attack on Garzón has been widely criticized by human rights defenders. Lotte Leicht of Human Rights Watch said, quote, “Garzón sought justice for victims of human rights abuses abroad and now he’s being punished for trying to do the same at home. The decision leaves Spain and Europe open to the charge of double standard.”
Judge Baltasar Garzón is here in New York this week to receive the first Abraham Lincoln Brigade Archives/Puffin Foundation Award for Human Rights Activism. He flew in from Spain last night, joins us in the studio today.
Welcome to Democracy Now!
JUDGE BALTASAR GARZÓN: Good Morning. Thank you.
AMY GOODMAN: And thank you to Tony Geist for translating.
Judge Garzón, let’s start with the latest news: the assassination of Osama bin Laden. You have condemned this. Why?
JUDGE BALTASAR GARZÓN: [translated] Any person who leads a terrorist organization like al-Qaeda is obviously a target. Under the rule of law, justice should be sought by legal means. According to the information we have, he could well have been arrested and brought to trial for his crimes.
AMY GOODMAN: Yet he was assassinated. Talk about the example you believe this sets.
JUDGE BALTASAR GARZÓN: [translated] According to international law, the murder or the assassination of bin Laden was not the appropriate solution. Clearly, from the information we have, it’s an undefined situation, given the state of conflict between the United States and al-Qaeda.
JUAN GONZALEZ: I wanted to ask you about the case, particular case, that you have been now indicted for, specifically overreaching your authority, supposedly, in terms of the investigation into the civilian deaths under the Franco regime. You prosecuted similar cases, where amnesties had been declared, in Argentina and Chile, and your government had no problem with that. But now, when you challenge the amnesty that was supposedly granted to the perpetrators of the Franco atrocities, suddenly the government has problems with your methods?
JUDGE BALTASAR GARZÓN: Yeah. [translated] This is the paradox and the irony of a situation in which Spain has been a pioneer in the application of universal jurisdiction. Yet, when it actually comes to investigating the case and the facts of the case in Spain, the country denies access to the facts and puts the judge himself on trial. It is the obligation of a judge to investigate the cases and to search for truth, justice and reparation for the victims of these crimes.
JUAN GONZALEZ: And in terms of the particular powers of a judge in Spain that may differ from what we here in the United States understand as a judge’s power, that the judges in Spain have both a sort of prosecutorial as well as a judgment aspect to their responsibilities, could you explain that?
JUDGE BALTASAR GARZÓN: Yes. [translated] Judges in Spain are a combination of prosecutor, investigator and judge.
AMY GOODMAN: I wanted to ask you about the WikiLeaks revelations. In Spain, there’s a lot of attention, of the documents, the U.S. government cables that have come out, about U.S. interference with the judiciary in Spain. One of the WikiLeaks cables was signed by Edward Aguirre, who is the—President Bush’s ambassador to Spain, who met with you. And he was concerned about a number of issues, and the U.S. has been concerned about the case in which—you opened against six former Bush administration officials, including Attorney General Alberto Gonzales, for torture at Guantánamo. Explain this case and why it has now been dropped.
JUDGE BALTASAR GARZÓN: [translated] In Spain, opened two procedures against—in the Guantánamo case: a general case against—regarding those six people and another specific case in four cases of torture. They were each in separate courts. The case of the four specific cases of torture is in his court, and it’s gone forward, although without specific indictments against particular individuals. Under the principle of universal jurisdiction, they have requested that the United States answer whether they are following up, investigating that case, or not. And if not, we’ll take it to the next step. It’s quite clear that they’re crimes against humanity, cases of torture, and therefore the government is obliged, under universal jurisdiction, to investigate them.
AMY GOODMAN: The ambassador in the document, in the WikiLeaks cable, said you have an anti-American streak. Your response?
JUDGE BALTASAR GARZÓN: No, you know, no, I don’t. Enemy against the United States, no. I think that is the justice, only justice, as the torture is a universal crime, is necessary to investigate. Only this.
JUAN GONZALEZ: I’d like to ask you about—to go back to the case of the Franco era. The New York Times, in an editorial in support of you, said recently, “The real crime[s] in this case are the disappearances, not Mr. Garzón’s investigation. If, as seems likely, these were crimes against humanity under international law, Spain’s 1977 amnesty could not legally absolve them.” Interestingly, the charges were brought against you initially by right-wing, pro-Franco groups in the country. So, in essence, some claim that the only one to be prosecuted for the crimes of the Franco era are the judge that has tried to investigate the cases. Could you—for Americans who are not familiar with what happened during the Franco era, could you talk a little bit about that?
JUDGE BALTASAR GARZÓN: [translated] The paradox again is that the government refuses to investigate the crimes against humanity and at the same time is prosecuting the judge who wants to uncover them. There were between 150,000 and 200,000 people disappeared under the Franco regime, as part of the civil population. It’s still not known where the victims lie buried. It’s a permanent crime, and therefore it cannot be absolved by an amnesty law.
AMY GOODMAN: Judge Baltasar Garzón, you have called for the exhumation of 19 unmarked graves, among them the one believed to contain the remains of the great poet, Federico García Lorca. Why?
JUDGE BALTASAR GARZÓN: [translated] He ordered specifically the opening, the exhumation of Lorca’s grave, because it was requested by the families of the other people who apparently are buried with him. And the request was made specifically to the judge of Granada, the area where the burial is.
AMY GOODMAN: And what do you hope to find?
JUDGE BALTASAR GARZÓN: [translated] So, the process is paralyzed right now because the judge of the location where Lorca is buried is one of those who objected and brought the case against Garzón. And the Supreme Court has suspended his decision to exhume the grave.
AMY GOODMAN: So, we’re going to go to break, but when we come back, we want to talk to Judge Baltasar Garzón about what this means that he now has been indicted, he has been suspended, he can’t practice law right now in Spain, what it means for all of these cases. This is Democracy Now!, democracynow.org, The War and Peace Report. Back in a minute.
AMY GOODMAN: Víctor Jara. This is Democracy Now!, democracynow.org. Víctor Jara, the great Chilean singer who was killed when the Augusto Pinochet forces rose to power and Allended died in the palace, September 11th, another September 11th, remarkably enough, 1973, who died among so many thousands of Chileans. It’s our guest today, Judge Baltasar Garzón, who first held Augusto Pinochet accountable, after his 17 years of brutal rule in Chile. When Augusto Pinochet went to Britain in the late ’90s for a doctor’s appointment, Judge Baltasar Garzón, from Spain, had him indicted. And it was because of that indictment that Augusto Pinochet was held in Britain for a year, until eventually allowed to go home.
Now Baltasar Garzón, Judge Garzón, faces his own trial, as he has been taken off the bench after crusading on many different issues, including the indictment of Osama bin Laden and other al-Qaeda operatives in 2003.
I’m Amy Goodman, with Juan Gonzalez.
JUAN GONZALEZ: Well, Judge Garzón, I’d like to ask you about another case that you were involved with, which was the investigation of the “dirty war” that occurred against Basque separatists under a Socialist government, the government of Felipe Gonzalez, in Spain. And you—many say that you were responsible for the fall of that government as a result of what you uncovered. Could you talk about what you found? And interestingly now, Felipe Gonzalez is supporting you and saying that what is happening to you is unjust.
JUDGE BALTASAR GARZÓN: [translated] I would never be responsible for an electoral loss that is due to the citizens who voted. What I did was simply investigate accusations of persecution against people accused of terrorism. The state of law is equal for all people. It cannot depend on electoral politics. A number of highly placed officials in the Socialist party, ruling party, government were accused and found guilty and removed. I believe that the democracy and the rule of law was strengthened by this action.
AMY GOODMAN: I wanted to go back to Chile. The family of the former Chilean president, Salvador Allende, asked last month for his body to be exhumed to help determine the cause of his 1973 death. President Allende was overthrown in a U.S.-backed coup, September 11th, 1973. The official cause of death on that day in the palace was listed as suicide, but it’s long been speculated he was assassinated by the forces of General Augusto Pinochet. Allende’s daughter, Isabel Allende, spoke to the media.
ISABEL ALLENDE: [translated] We requested the exhumation and autopsy. I think it’s the most rigorous and definitive proof to clear up the causes of his death, and we think this is going to be tremendously important.
AMY GOODMAN: That was the daughter of Salvador Allende, Isabel Allende, not to be confused with the great writer who is his niece. What do you say about the calling for the exhumation and the investigation of whether this was assassination or whether he took his own life as the Augusto Pinochet forces moved into the palace?
JUDGE BALTASAR GARZÓN: [translated] In the first instance, they investigated the criminal actions of those who rose up against a democratically elected government. The actual cause of death is less important than recognizing the fact that this was an illegal action, a coup against a legally elected government. And for those crimes, Pinochet was investigated and indicted in London.
AMY GOODMAN: So where do you stand right now, Judge Garzón? You’ve been suspended. You face trial. You face prison for many years.
JUDGE BALTASAR GARZÓN: I am provisionally suspended in my function, jurisdictional function. But I hope the trial against me, that we will, in the next month, I think—but it’s very complicated for me, my actual situation, because I cannot to investigate, to work in Spain. But I work right now in La Haya, in the International Criminal Court, with the prosecutor. But it’s not my destination. I hope the resolution, it will be proximally.
JUAN GONZALEZ: Some of your—you have many people who are passionately supporters of yours, as well as very strong critics, including among your colleagues on the bench. Several major judges in Spain have accused you of basically being a media personality trying to grab attention and really overstepping your responsibilities as a judge. How do you answer those in the judicial community who have criticized you in the past?
JUDGE BALTASAR GARZÓN: [translated] What’s most important are the cases in which I have participated. Any judge who had done what I did would be well known. That’s not, in principle, a bad thing. What’s wrong is to impede those investigations and that the victims should not be aided. It’s true that my personality gives an additional passion to it. But that should be appropriate for any judge. All I’ve done is my job, and I intend to continue doing it. And I’m not especially worried about the criticism that comes from the bench.
JUAN GONZALEZ: And even if you’re absolved of the charges, do you think you will be able to continue to function as a judge in Spain?
JUDGE BALTASAR GARZÓN: [translated] It’s possible that I could continue, but right now I’m involved in a very interesting project in Colombia. For a certain amount of time, I’m going to be working with the OAS in Colombia on furthering the peace process and mediating, to work on a means of transitional justice.
JUAN GONZALEZ: In terms of having—achieving a peace between the FARC and the government?
JUDGE BALTASAR GARZÓN: [translated] To be able to mobilize and put into practice the law which came after the demobilization, so cases can go to trial and victims can receive justice.
AMY GOODMAN: I wanted to, as we wrap up, talk again about universal jurisdiction, what this means, using the Spanish courts to hold tyrants accountable, wherever they may be. The Spanish government is now curtailing this, saying they don’t want to use universal jurisdiction. You have been a crusader for this. Lawyers around the world have looked at what you’re doing, seeing if it’s possible in their own countries. Yet your own government is cracking down on this. Will you be able, if you are cleared of all the charges and can go back to work, to continue to hold international torturers, tyrants, accountable?
JUDGE BALTASAR GARZÓN: [translated] Yes, indeed. Not just me, but any judge should be able to and will be able to do so. No government in the world is easy with the application of the principle of universal jurisdiction. It’s a mistake. I believe it’s a mistake, because the principle of universal jurisdiction allows the fight against impunity to move forward. It’s the final scenario when the country itself is not willing to investigate these crimes, any government.
JUAN GONZALEZ: Were you surprised by some of the WikiLeaks revelations that indicated an extraordinary degree of pressure by the United States government on the judiciary and the government of Spain on cases affecting the United States?
JUDGE BALTASAR GARZÓN: [translated] Yes, it did surprise me. Those who are susceptible to being pressured will be pressured. And if not, the pressure is meaningless. In this case, the justice system in Spain, specifically in regard to Guantánamo, steadfast, stood fast.
AMY GOODMAN: We have just 10 seconds. Short answer. Your assessment of the wars in Iraq and Afghanistan?
JUDGE BALTASAR GARZÓN: [translated] The war in Iraq was an unjust and illegal war. And the war in Afghanistan, which has been conducted properly until now, there are many other things that still need to be revealed.
AMY GOODMAN: Judge Baltasar Garzón, thank you so much for being with us.
Spanish Judge to Probe Guantanamo Torture Claims January 31, 2010Posted by rogerhollander in Criminal Justice, Torture, Uncategorized.
Tags: Ahmed Abderraman Hamed, baltasar garzon, detainees, geneva conventions, Guantanamo, nuremberg, roger hollander, torture, universal jurisdiction
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MADRID – Spain’s top investigating judge Baltasar Garzon is to probe suspected torture and ill-treatment of inmates at the US prison of Guantanamo Bay, a judical source said Saturday.
The judge will be acting on complaints lodged by a number of associations, focussing on one prisoner, Ahmed Abderraman Hamed, who has Spanish nationality, the source added, confirming a report published in daily El Pais Three other detainees, Moroccan Lahcen Ikasrrien, Palestinian Jamiel Abdulatif al-Banna and Libyan Omar Deghayes would also be concerned as they had links with Spain.
In 2005 Spain declared itself competent to investigate any crime committed abroad, but after diplomatic problems the scope of the inquiries was reduced in 2009.
Spanish courts can now deal only with cases that have a clear link with Spain, or cases that are not being investigated in countries where the offences are alleged to have been committed.
El Pais said Washington had not replied to a request made seven months ago from Madrid as to whether it was investigating the allegations now being taken up by Garzon, who is best-known internationally for his pursuit of Latin American dictators.
The Palestinian Authority’s foreign minister Riyad al Malky said in Madrid last week that Spain had agreed to accept a Palestinian Guantanamo Bay detainee.
The unnamed man will be transferred to Spain in early February along with another man whose nationality has not been confirmed, according to press reports quoting Spanish diplomatic sources.
The US detention camp in Cuba was set up to hold foreigners captured after US-led forces invaded Afghanistan to root out al Qaeda and its Taliban protectors in response to the attacks of Sept. 11, 2001 against the United States.
In one of his first acts in office, US President Barack Obama set a one-year deadline for shutting the prison and the United States has started to slowly empty it of detainees.
Garzon, 54, was thrust into the international limelight in 1998 with his attempt to extradite former Chilean dictator Augusto Pinochet from Britain on charges of torture and genocide.
He has also investigated suspected drug lords, arms traffickers and terrorists and indicted Osama bin Laden on charges of terrorism, including the September 11 attacks in the United States.
© 2010 Agence France-Presse
Spanish Justice for American Crimes? June 25, 2009Posted by rogerhollander in Criminal Justice, Torture.
Tags: Alberto Gonzales, baltasar garzon, Baltazar Garzon, bush administration, bush six, david addington, douglas feith, geneva conventions, gitmo, gonzalo boye, Guantanamo, human rights, jay bybee, john yoo, nuremberg, philippe sands, pinochet, roger hollander, spain government, spain poitics, spanish courts, torture, torture team, universal jurisdiction, william haynes
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Can a court in Madrid bring Gonzales, Yoo, and company to justice? Mother Jones talks to the lawyer seeking indictments of the “Bush Six.”
by Bruce Falconer
Will former US Attorney General Alberto Gonzales and other senior Bush administration officials end up in jail for crafting the policies that led to the torture of prisoners at Guantánamo? As of yet, no government prosecutor is targeting them in the United States. But thousands of miles away, Spanish attorney Gonzalo Boyé is chasing after Gonzales and five other lawyers, and he has a chance-perhaps not a large one-of convincing his country’s legal system to charge these former Bush aides with human rights violations.
For more than a decade, Spanish courts have been the terror of torturers and genocidaires the world over. Operating under the principle of “universal jurisdiction,” the country has claimed the right to investigate and, if necessary, prosecute human rights cases that occurred beyond its borders if the countries in question fail to act. Spain first invoked its status as the world’s court of last resort in 1998, when Judge Baltazar Garzón of the National Court in Madrid issued an arrest warrant for former Chilean dictator Augusto Pinochet for his regime’s torture and murder of Spanish citizens. Pinochet ultimately escaped prosecution in Spain, but Garzón’s move paved the way for more cases. Sixteen are currently moving through Spanish courts, targeting perpetrators from Israel, China, Guatemala, Argentina, and El Salvador, among other countries. Still, for all the shuffling of paper, Spain has produced only one conviction under the banner of universal jurisdiction: that of Adolfo Scilingo, an Argentinean convicted in 2005 of assassinating left-wing dissidents during the country’s “dirty war.”
Most recently, Garzón has turned his attention to six former Bush administration figures accused of putting forth specious legal arguments to justify clear violations of the United Nations Convention Against Torture. The so-called “Bush Six” case targets Gonzales; John Yoo, former Justice Department attorney and lead author of the “torture memos“; Douglas Feith, former deputy secretary of defense for policy; William Haynes II, Pentagon general counsel; Jay Bybee, former assistant attorney general; and David Addington, former chief of staff and legal adviser to Vice President Dick Cheney.
The investigation is the handiwork of Boyé, a human rights lawyer who represents several former Guantánamo detainees. According to their criminal complaint, they allege that the Bush Six “participated actively and decisively in the creation, approval and execution of a judicial framework that allowed for the deprivation of fundamental rights to a large number of prisoners,” and legitimized “the implementation of new interrogation techniques including torture.” In March, Garzón took up Boyé’s case and initiated an official investigation; another National Court judge, Ismail Moreno, has since taken over the matter. Theoretically, assuming investigators gather sufficient evidence, indictments and prosecutions could follow, though it’s unlikely that any of the Bush administration lawyers would choose to show up in Spain for a trial.
Boyé himself is no stranger to terrorism cases. He spent eight years in a Spanish prison for his involvement in the 1988 kidnapping of businessman Emiliano Revilla, who was held hostage for eight months by members of ETA, a Basque separatist group that appears on the US State Department’s list of international terrorist organizations. Boyé claims to only have lent the kidnappers his ID and characterizes his incarceration as the result of “a very unfair trial.”
Now, Boyé has become something of a de facto prosecutor. But a recent resolution passed by the Spanish parliament could undermine his case. Spain’s two leading political parties-the Socialists and the People’s Party-overwhelmingly passed a measure on May 19 calling for a law that would restrict the use of universal jurisdiction. Will the measure quash the Bush Six investigation? Mother Jones discussed the case with Boyé.
Mother Jones: How was it that you came to be involved with the Bush Six case?
Gonzalo Boyé: I was concerned about the situation in Guantanamo and was searching for more information about it. Then I found several books, including The Torture Team by Philippe Sands. Reading it, I was sure that the key problem was the lawyers. The lawyers who created the legal framework for Guantanamo are the basis for all that happened there. Without the lawyers, the crime would never have been committed, or at least not in that form and with such a degree of impunity.
MJ: What are you hoping to accomplish?
GB: To get a conviction against the people responsible for what happened in Guantánamo. Accountability is the first step toward deterrence. With criminal offenses like this, it is necessary to send a clear message: No one is above the law, no matter their intentions. The security of any country can only exist within the rule of law. The war on terror is no exception. Thanks to Guantánamo, no evidence obtained there can be used in any court of law. Bush and his advisers have done a great favor for Islamic terrorists.
MJ: Are there any legal precedents for what you are attempting to do?
GB: Yes, at the Nuremberg trials several lawyers and judges were convicted for actions similar to those of the Bush Six. And in other countries, legal advisers and physicians have been convicted for taking part in torture. I do not see any reason why this case should be different.
MJ: A similar case in Germany against the Bush administration failed. Why? And what do you plan to do differently in order to optimize your chances of success?
GB: Because in Germany only the state prosecutor can exercise criminal action. In Spain, victims and civil society can do so themselves. There is no political control over what can go to court. According to the Spanish constitution, anyone can file criminal charges. That is the main difference between Spain and any other legal system in which universal jurisdiction is recognized.
MJ: What would you characterize as success in this case? Indictments?
GB: We are seeking more than just indictments. These people will be convicted, either in Spain or in the United States. I would prefer that the trial take place in North America, as that would be the best example of a legal system working for everyone.
MJ: The Spanish parliament passed a draft law on May 19, setting additional restrictions on universal jurisdiction cases like yours, presumably with the intent of making them more difficult to file. How might the new law affect the Bush Six case? Does it target your investigation specifically?
GB: The Spanish parliament is in the process of approving new regulations, but that will have no effect on this case. We represent Spanish victims, so there is sufficient relevance to Spain for the case to go forward. The new regulations are being devised in order to obtain impunity for the Chinese and Israeli authorities involved in other universal jurisdiction cases. They will not apply to people involved in torture committed at Guantánamo. In the Bush Six case, we fulfill all the new requirements of the draft law, so there is no reason for the Bush Six to relax or celebrate.
MJ: How likely is it that this draft law will pass? When do you expect it will?
GB: The law will be passed without a doubt, as it is in the interest of both major political parties. For the first time in several years, they are in agreement on something. They want to grant impunity to people who have committed the most serious criminal offences as defined under international treaties. Sooner than later, the government will regret changing the law and its collaboration with the opposition. The draft law would never have been written without political pressure exerted by both Israel and China.
MJ: Why do you think both major parties in Spain are so eager to weaken universal jurisdiction?
GB: They are bending to pressure from abroad. Politicians never considered changing the law until we brought criminal cases against some Israeli and Chinese officials. At the end of the day, the new draft law was not planned in Madrid, but in Tel Aviv and Beijing. Instead of keeping a dignified and independent position, Spanish politicians are running to meet the demands of these two foreign governments. Spain does not have a long-standing democratic culture, so it feels the need to be friendly with everyone rather than only those countries that respect human rights. In cases like this, a middle-of-the-road position is unacceptable: Either you are with the victims, or you are with the perpetrators. Spain was to play a major role in a peaceful solution to the Israeli-Palestinian problem, but with decisions like this, its position will become unacceptable to the Palestinian side. Politicians have a double standard when it comes to these types of crimes. That is quite evident.
MJ: How far along is the investigation? Have you requested that Judge Moreno call any witnesses? Gather any documents?
GB: We have requested a lot of documents and are waiting for US authorities to respond. We have presented some expert reports to the court. The next step will be to call witnesses.
MJ: Do you intend to urge the court to call members of the Bush Six to testify?
GB: Yes, all of them will be called as defendants. They are people responsible for serious criminal offences. We will guarantee them due process, as that is the only way to achieve proper justice.
© 2009 Mother Jones
Spain’s Judges Cross Borders in Rights Cases May 24, 2009Posted by rogerhollander in Criminal Justice, Spain, Torture.
Tags: baltasar garzon, bush crimes, bush six, craig whitlock, cristina mateo-yanguas, eichmann, gaza, Guantanamo, human rights, israel massacre, israeli military, javier zaragoza, nuremberg, pinochet, roger hollander, santiago pedraz, spanish judges, spanish national court, spanish prosecutors, torture, universal jurisdiction, War Crimes, zapatero
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High-Ranking US Officials Among Targets of Inquiries
MADRID — Spanish judges are boldly declaring their authority to prosecute high-ranking government officials in the United States, China and Israel, among other places, delighting human rights activists but enraging officials in the countries they target and triggering a political backlash in a nation uncomfortable acting as the world’s conscience.
Judges at Spain’s National Court, acting on complaints filed by human rights groups, are pursuing 16 international investigations into suspected cases of torture, genocide and crimes against humanity, according to prosecutors. Among them are two probes of Bush administration officials for allegedly approving the use of torture on terrorism suspects, including prisoners at Guantanamo Bay, Cuba.
The judges have opened the cases by invoking a legal principle known as universal jurisdiction, which under Spanish law gives them the right to investigate serious human rights crimes anywhere in the world, even if there is no Spanish connection.
International-law advocates have cheered the developments and called the judges heroes for daring to hold the world’s superpowers accountable. But the proliferation of investigations has also prompted a backlash in Spain, where legislators and even some law enforcement officials have criticized the powerful judges for overreaching, as well as souring diplomatic relations with allies.
“How can a Spanish judge with limited resources determine what really happened in Tiananmen or Tibet, or in massacres in Guatemala or God knows where else?” said Gustavo de Arístegui, a legislator and foreign-policy spokesman for the opposition Popular Party. “We have our own problems and our own bad guys to take care of.”
On Tuesday, the lower house of the Spanish parliament easily passed a resolution calling for a new law that would limit judges to pursuing cases with ties to Spanish citizens or a link to Spanish territory. Cases could be brought only if the targeted country failed to take action on its own.
The vote was prompted, in part, by two National Court judges who decided separately last month to investigate Bush administration officials on allegations that they encouraged a policy of torture. The judges have moved forward despite the opposition of Spanish Attorney General Cándido Conde-Pumpido, who said the cases risked turning the National Court into “a plaything” for politically motivated prosecutions.
Another judge announced Thursday that he would charge three U.S. soldiers with crimes against humanity, holding them accountable for the April 2003 deaths of a Spanish television cameraman and a Ukrainian journalist. The men were killed when a U.S. tank crew shelled their Baghdad hotel. Judge Santiago Pedraz said he would pursue the case even though a National Court panel, as well as a U.S. Army investigation, recommended that no action be taken against the soldiers.
The controversy over universal jurisdiction has left the government of Spanish Prime Minister José Luis Rodríguez Zapatero in a bind. Many members of his Socialist Party have supported the judges in the past. But the probes are causing diplomatic headaches for Zapatero, who has sought to improve his standing in Washington after years of frosty relations with the Bush White House.
Israel and China have complained strenuously about the investigations of their countries, making clear that Spain will pay a political price if they continue. Spanish judges have opened two probes into Israeli military airstrikes on the Gaza Strip, dating to 2002. They are also conducting two investigations into alleged abuses committed by Chinese officials in Tibet, and a third regarding repression of the Falun Gong movement.
Julio Villarubia, a Socialist member of parliament, said it was unclear exactly how or when the Spanish government would amend its universal-jurisdiction law. But he said limits are necessary.
“We have not adopted the resolution because of pressures by the U.S., China, and Israel, though that pressure is known; the disagreements are there,” he said.
It is unclear whether changes to the law would apply retroactively to pending cases. In interviews, a Justice Ministry official said they would not, but a senior prosecutor in the National Court suggested otherwise.
Regardless, most of the probes underway do have at least a tangential Spanish connection. The Guantanamo cases, for example, are partly based on testimony by a Spanish citizen who spent three years at the U.S. naval prison in Cuba.
A Global PortfolioSpain’s embrace of universal jurisdiction dates back more than a decade. In 1996, a crusading judge on the National Court, Baltasar Garzón, opened a criminal investigation into human rights abuses in Chile and Argentina.
When Chile’s aging dictator, Gen. Augusto Pinochet, traveled to London for medical treatment in 1998, Garzón issued a warrant for his arrest. British officials complied and held him under house arrest. But they later allowed Pinochet to return to Chile, citing his ill health as a reason for not extraditing him to Spain.
Garzón had asserted jurisdiction because some of the victims of the Chilean dictatorship were Spanish citizens. But that legal condition was pronounced unnecessary in 2005, when Spain’s Constitutional Court ruled that judges can pursue grave human rights crimes anywhere, even if there is no Spanish connection.
Since then, rights groups have made a beeline for Madrid, where they have enlisted local lawyers to file complaints with the National Court. Spanish judges are obligated to examine each case and investigate whether it meets certain thresholds.
Under Spain’s legal system, judges such as Garzón serve as investigating magistrates and hold enormous power. They oversee police work, collect evidence and can compel witnesses to testify. If they conclude that charges are warranted, they hand the case to another judge for trial.
The National Court judges originally concentrated on countries with colonial ties to Spain, such as Guatemala, Argentina and El Salvador. But the judges have recently branched out to other places, such as Rwanda, Morocco, China and Israel.
Alan Cantos, president of the Tibet Support Committee, a Spanish advocacy group that requested the probes, said he is worried the Spanish government will succumb to outside political pressure.
“When powerful countries start getting touched, there is a backlash,” he said. “You mix U.S., Israeli and Chinese propaganda and complaints, and all of a sudden, the Spanish government starts shaking at the knees. Quite frankly, I find it pathetic.”
The Spanish universal-jurisdiction investigations have resulted in a single conviction. Adolfo Scilingo, a former Argentine naval captain, was found guilty of crimes against humanity in 2005 for pushing 30 drugged and bound prisoners out of government airplanes in the 1970s. He was sentenced to more than 1,000 years in prison by a Spanish court.
Carlos Slepoy, a Spanish-Argentine lawyer who helped pursue Scilingo, said the universal-jurisdiction cases have valuable secondary effects. Officials targeted by Spanish judges need to be careful about where they travel; Spanish arrest warrants are generally enforced throughout Europe but also sometimes in Mexico and other countries.
“Any country should be able to bring these cases, as long as they are democracies that belong to the United Nations,” Slepoy said.
‘An Inflation of Cases’Critics say the cases are influenced by politics. They note that the National Court has been quick to accept complaints about human rights abuses in Israel and the United States but has ignored problems in Syria, North Korea and Cuba.
“These guys are not proper judges from a professional point of view,” said Florentino Portero, a contemporary history professor at Madrid’s National Open University. “They are following a trend from the left wing of the Spanish political arena.”
Spanish prosecutors have also expressed concern. They recommended that the National Court not pursue many of the 16 pending cases but were overruled by judges, who have the final say.
Javier Zaragoza, chief prosecutor at the National Court, said universal-jurisdiction cases are legitimate in principle. But he said Spain should not try to intervene in the affairs of democratic countries that are equipped to police themselves.
Even some human rights advocates said the explosion of cases has made them uneasy.
Gregorio Dionis, president of Equipo Nizkor, a Brussels-based group that has urged the National Court to prosecute accused former Nazi death camp guards living in the United States, said it has become too easy to have a complaint acted upon.
“There’s been an inflation of cases filed under universal jurisdiction,” he said. “Not all of them have been well grounded from a legal point of view.”
Other advocates, however, point out that Israel and the United States have embraced the principle of universal jurisdiction when it suits them.
In 1960, Israeli agents kidnapped Nazi war criminal Adolf Eichmann in Argentina and tried him in Israel; he was convicted and executed.
More recently, the U.S. Department of Justice has supported efforts to have Spain pursue investigations against two alleged Nazi concentration camp guards living in the United States. The Justice Department lacks the jurisdiction to prosecute the men for crimes committed decades ago in Europe but would like to deport them to Spain to stand trial there.
Special correspondent Cristina Mateo-Yanguas contributed to this report.
Tags: Abu Ghraib, aclu, bagram, baltasar garzon, bush six, david hicks, eric holder, force feeding, force feeding torture, geoffrey miller, Guantanamo, guantanamo black shirts, Guantanamo detainees, guantanamo prisoners, guantanamo terror squad, human rights, human rights violations, irf, jeremy scahill, Obama, omar deghayes, scott horton, sean baker, spanish justices, torture, torture techniques, torture videos, waterboarding
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The ‘Black Shirts’ of Guantanamo routinely terrorize prisoners, breaking bones, gouging eyes, squeezing testicles, and ‘dousing’ them with chemicals.
As the Obama administration continues to fight the release of some 2,000 photos that graphically document U.S. military abuse of prisoners in Iraq and Afghanistan, an ongoing Spanish investigation is adding harrowing details to the ever-emerging portrait of the torture inside and outside Guantánamo. Among them: “blows to [the] testicles;” “detention underground in total darkness for three weeks with deprivation of food and sleep;” being “inoculated … through injection with ‘a disease for dog cysts;’” the smearing of feces on prisoners; and waterboarding. The torture, according to the Spanish investigation, all occurred “under the authority of American military personnel” and was sometimes conducted in the presence of medical professionals.
More significantly, however, the investigation could for the first time place an intense focus on a notorious, but seldom discussed, thug squad deployed by the U.S. military to retaliate with excessive violence to the slightest resistance by prisoners at Guantánamo.
The force is officially known as the the Immediate Reaction Force or Emergency Reaction Force, but inside the walls of Guantánamo, it is known to the prisoners as the Extreme Repression Force. Despite President Barack Obama’s publicized pledge to close the prison camp and end torture — and analysis from human rights lawyers who call these forces’ actions illegal — IRFs remain very much active at Guantánamo.
IRF: An Extrajudicial Terror Squad
The existence of these forces has been documented since the early days of Guantánamo, but it has rarely been mentioned in the U.S. media or in congressional inquiries into torture. On paper, IRF teams are made up of five military police officers who are on constant stand-by to respond to emergencies. “The IRF team is intended to be used primarily as a forced-extraction team, specializing in the extraction of a detainee who is combative, resistive, or if the possibility of a weapon is in the cell at the time of the extraction,” according to a declassified copy of the Standard Operating Procedures for Camp Delta at Guantánamo. The document was signed on March 27, 2003, by Maj. Gen. Geoffrey Miller, the man credited with eventually “Gitmoizing” Abu Ghraib and other U.S.-run prisons and who reportedly ordered subordinates to treat prisoners “like dogs.” Gen. Miller ran Guantánamo from November 2002 until August 2003 before moving to Iraq in 2004.
When an IRF team is called in, its members are dressed in full riot gear, which some prisoners and their attorneys have compared to “Darth Vader” suits. Each officer is assigned a body part of the prisoner to restrain: head, right arm, left arm, left leg, right leg. According to the SOP memo, the teams are to give verbal warnings to prisoners before storming the cell: “Prior to the use of the IRF team, an interpreter will be used to tell the detainee of the discipline measures to be taken against him and ask whether he intends to resist. Regardless of his answer, his recent behavior and demeanor should be taken into account in determining the validity of his answer.”The IRF team is authorized to spray the detainee in the face with mace twice before entering the cell.
According to Gen. Miller’s memo: “The physical security of U.S. forces and detainees in U.S. care is paramount. Use the minimum force necessary for mission accomplishment and force protection … Use of the IRF team and levels of force are not to be used as a method of punishment.”
But human rights lawyers, former prisoners and former IRF team members with extensive experience at Guantánamo paint a very different picture of the role these teams played. “They are the Black Shirts of Guantánamo,” says Michael Ratner, president of the Center for Constitutional Rights, which has represented the most Guantánamo prisoners. “IRFs can’t be separated from torture. They are a part of the brutalization of humans treated as less than human.”
Clive Stafford Smith, who has represented 50 Guantánamo prisoners, including 31 still imprisoned there, has seen the IRF teams up close. “They’re goons,” he says. “They’ve played a huge role.”
While much of the “torture debate” has emphasized the so-called “enhanced interrogation techniques” defined by the twisted legal framework of the Office of Legal Council memos, IRF teams in effect operate at Guantánamo as an extrajudicial terror squad that has regularly brutalized prisoners outside of the interrogation room, gang beating them, forcing their heads into toilets, breaking bones, gouging their eyes, squeezing their testicles, urinating on a prisoner’s head, banging their heads on concrete floors and hog-tying them — sometimes leaving prisoners tied in excruciating positions for hours on end.
The IRF teams “were fully approved at the highest levels [of the Bush administration], including the Secretary of Defense and with outside consultation of the Justice Department,” says Scott Horton, one of the leading experts on U.S. Military and Constitutional law. This force “was designed to disabuse the prisoners of any idea that they would be free from physical assault while in U.S. custody,” he says. “They were trained to brutally punish prisoners in a brief period of time, and ridiculous pretexts were taken to justify” the beatings.
So notorious are these teams that a new lexicon was created and used by prisoners and guards alike to describe the beatings: IRF-ing prisoners or to be IRF-ed.
Former Guantánamo Army Chaplain James Yee, who witnessed IRFings, described “the seemingly harmless behaviors that brought it on [like] not responding when a guard spoke.” Yee said he believed that during daily cell sweeps, guards would intentionally do invasive searches of the Muslim prisoners’ “private areas” and Korans to “rile the detainees,” saying it “seemed like harassment for the sake of harassment, and the prisoners fought it. Those who did were always IRFed.”
“I’ll put it like this,” Stafford Smith says. “My clients are afraid of them.”
“Up to 15 people attempted to commit suicide at Camp Delta due to the abuses of the IRF officials,” according to the Spanish investigation. Combined with other documentation, including prisoner testimony and legal memos, the IRF teams appear to be one of the most significant forces in the abuse of prisoners at Guantánamo, worthy of an investigation by U.S. prosecutors in and of themselves.
The IRF-ing of Omar Deghayes
Perhaps the worst abuses in the Spanish case involve Omar Deghayes, whose torture began long before he reached Guantánamo, and intensified upon his arrival.
A Libyan citizen who had lived in Britain since 1986, in the late 1990s, Deghayes was a law student when he traveled to Afghanistan, “for the simple reason that he is a Muslim and he wanted to see what it was like,” according to his lawyer, Stafford Smith. While there, he met and married an Afghan woman with whom he had a son.
After 9/11, Deghayes was detained in Lahore, Pakistan, for a month, where he allegedly was subjected to “systematic beatings” and “electric shocks done with a tool that looked like a small gun.”
He was then transferred to Islamabad, Pakistan,where he claims he was interrogated by both U.S. and British personnel. There, the torture continued; in a March 2005 memo written by a lawyer who later visited Deghayes at Guantánamo, he described a particularly ghoulish incident:
“One day they took me to a room that had very large snakes in glass boxes. The room was all painted black-and-white, with dim lights. They threatened to leave me there and let the snakes out with me in the room. This really got to me, as there were such sick people that they must have had this room specially made.”
Deghayes was eventually moved to Bagram Air Base in Afghanistan, where he was beaten and “kept nude, as part of the process of humiliation due to his religion.” U.S. personnel placed Deghayes “inside a closed box with a lock and limited air.” He also described seeing U.S. guards sodomize an African prisoner and alleged guards “forced petrol and benzene up the anuses of the prisoners.”
“The camp looked like the Nazi camps that I saw in films,” Deghayes said.
When Deghayes finally arrived at Guantánamo in September 2002, he found himself the target of the feared IRF teams.
“The IRF team sprayed Mr. Deghayes with mace; they threw him in the air and let him fall on his face … ” according to the Spanish investigation. Deghayes says he also endured a “sexual attack.” In March 2004, after being “sprayed in the eyes with mace,” Deghayes says authorities refused to provide him with medical attention, causing him to permanently lose sight in his right eye. Stafford Smith described the incident:
“They brought their pepper spray and held him down. They held both of his eyes open and sprayed it into his eyes and later took a towel soaked in pepper spray and rubbed it in his eyes.
“Omar could not see from either eye for two weeks, but he gradually got sight back in one eye.
“He’s totally blind in the right eye. I can report that his right eye is all white and milky — he can’t see out of it because he has been blinded by the U.S. in Guantánamo.”
In fact, Stafford Smith says his blindness was caused by a combination of the pepper spray and the fact that an IRF team member pushed his finger into Deghayes’ eye.
The Spanish investigation into Deghayes’ torture draws much from the March 2005 memo, which described several acts of abuse of Deghayes at the hands of the IRF teams. (The memo refers to IRF by its alternative acronym ERF):
ERF-ing Omar — The Feces Incident
On one of the ERF-ing incidents where Omar was abused, the officer in charge himself came into the cell with the feces of another prisoners [sic] and smeared it onto Omar’s face. While some prisoners had thrown feces at the abusive guards, Omar had always emphatically refused to sink to this level. The experience was one of the most disgusting in Omar’s life.
ERF-ing Omar — The Toilet Incident
In April or May 2004, when the Guantánamo administration insisted on taking Omar’s English-language Quran, he objected. The ERF team came into Omar’s cell and put him in shackles. He was not resisting. They then put his head in the toilet, pressed his face into the water. They repeatedly flushed it.
ERF-ing Omar — The Beating
In one ERF-ing incident, Omar was shackled by three American soldiers in their black Darth Vader Star Wars uniforms. The first was going to punch Omar, but before he could, the second kneed Omar in the nose, trying to break it. The third queried this, and the second said, “If his nose is broken, that’s good. We want to break his ******* nose.” The third soldier then took him to hospital.
ERF-ing Omar — The Drowning
The ERF team came into the cell with a water hose under very high pressure. He was totally shackled, and they would hold his head fixed still. They would force water up his nose until he was suffocating and would scream for them to stop. This was done with medical staff present, and they would join in. Omar is particularly affected by the fact that there was one nurse who “had been very beautiful and kind” to him to [sic] took part in the process. This happened three times.
ERF-ing Omar — Tango Block
Omar was out on the Tango block rec yard when 15 ERF soldiers came, with two other soldiers in the towers, armed with guns. They grabbed him (and others) and sprayed him.
They then pulled him up into the air and slammed his face down, on the left side, on the concrete. They had someone from the hospital there, and she just watched. She then came up to him and asked whether he was OK. He was taken off to isolation after that.
A medical examination cited in the Spanish investigation confirmed that Deghayes suffered from blindness of the right eye, fracture of the nasal bone and fracture of the right index finger, as well as post-traumatic stress disorder and “profound” depression.
At the Pentagon, an official paper trail should exist that documents the IRF-ing of Deghayes. What’s more, according to Gen. Miller’s SOP memo, all of the actions of the IRF teams were to be videotaped as well.
After a prisoner was IRF-ed, “The medical personnel on site will conduct a medical evaluation of the detainee to check for any injuries sustained during the IRF,” and, “all IRF Team members are required to submit sworn statements.” These statements, reports and video were “to be kept as evidence.”
As of early 2005, there were reportedly 500 hours of video; the ACLU attempted to force their release, but they never have been produced.
“Where are those tapes?” asks CCR President Michael Ratner. In some cases, the answer may well be that they never existed or no longer do. “When an IRFing took place a camera was supposed to be present to capture the IRFing,” said Army Spec. Brandon Neely, who was on one of the first IRF teams at Guantánamo. “Every time I witnessed an IRFing a camera was present, but one of two things would happen: (1) the camera would never be turned on, or (2) the camera would be on, but pointed straight at the ground.”
Neeley recently gave testimony to the University of California, Davis’ Guantánamo Testimonials Project. He also described one IRF-ing where the video of the incident was destroyed.
Regarding the videos, Stafford Smith says, “There are some things I can’t talk about, but I will confirm there is photographic evidence. I am absolutely confident that if all of the photographs were revealed to the world, they would provide irrefutable physical evidence that the prisoners had been” abused by the IRFs.
As for the “sworn statements” by IRF team members, a review of hundreds of pages of declassified incident reports reveals an almost robotic uniformity in the handwritten accounts, overwhelmingly composed of succinct portrayals of operations that went off without a hitch. Almost all of them contain the phrases “minimum amount of force necessary” and the prisoner “received medical attention and evaluation” before being returned.
“All internal investigations of Gitmo so far have completely whitewashed the IRF process,” says Horton. “They did so for obvious reasons.”
“The IRF program was supported by advice secured from the Justice Department suggesting that insubordinate behavior could be cited to justify a departure from guidelines against physical force. It has a conspiratorial odor to it,” says Horton. “In fact the use of IRFs was illegal, a violation of Common Article 3 [of the Geneva Convention] and a violation of the Uniform Code of Military Justice, which forbids the use of unnecessary force against prisoners.”
While Spain will probably pursue the role the IRF teams played in the torture of its citizens or residents, its scope goes far beyond those specific incidents.
“I have seen detainees IRF’ed while they were praying, or for refusing medication.”
Deghayes’ treatment at the hands of the feared IRF teams mirrors that of several other released Guantánamo prisoners.
David Hicks, an Australian citizen held at Guantánamo, said in a sworn affidavit, “I have witnessed the activities of the [IRF], which consists of a squad of soldiers that enter a detainee’s cell and brutalize him with the aid of an attack dog … I have seen detainees suffer serious injuries as a result of being IRF’ed. I have seen detainees IRF’ed while they were praying, or for refusing medication.”
Binyam Mohamed, released in February, has also described an IRF assault: “They nearly broke my back. The guy on top was twisting me one way, the guys on my legs the other. They marched me out of the cell to the fingerprint room, still cuffed. I clenched my fists behind me so they couldn’t take [finger]prints, so they tried to take them by force. The guy at my head sticks his fingers up my nose and wrenches my head back, jerking it around by the nostrils. Then he put his fingers in my eyes. It felt as if he was trying to gouge them out. Another guy was punching my ribs, and another was squeezing my testicles. Finally, I couldn’t take it any more. I let them take the prints.”
A report prepared by British human rights lawyer Gareth Peirce, documents the alleged abuse of a Bahraini citizen, Jumah al Dousari by an IRF team. Before being taken to Guantánamo, al Dousari was widely known to be “mentally ill.” On one occasion, the IRF Team was called into his cell after al Dousari allegedly insulted a female soldier. Another prisoner who witnessed the incident described what happened:
“There were usually five people on an ERF team. On this occasion there were eight of them. When Jumah saw them coming, he realized something was wrong and was lying on the floor with his head in his hands. If you’re on the floor with your hands on your head, then you would hope that all they would do would be to come in and put the chains on you. That is what they’re supposed to do.
“The first man is meant to go in with a shield. On this occasion, the man with the shield threw the shield away, took his helmet off, when the door was unlocked ran in and did a knee drop onto Jumah’s back just between his shoulder blades with his full weight. He must have been about 240 pounds in weight. His name was Smith. He was a sergeant E-5. Once he had done that, the others came in and were punching and kicking Jumah. While they were doing that the female officer then came in and was kicking his stomach. Jumah had had an operation and had metal rods in his stomach clamped together in the operation.
“The officer Smith was the MP sergeant who was punching him. He grabbed his head with one hand and with the other hand punched him repeatedly in the face. His nose was broken. He pushed his face, and he smashed it into the concrete floor. All of this should be on video. There was blood everywhere. When they took him out, they hosed the cell down and the water ran red with blood. We all saw it.”
Force Feeding as a Form of Torture
The IRF teams were also used to force-feed hunger-striking prisoners at Guantánamo, including in August 2005. Deghayes was among the hunger strikers, writing in a letter, “I am slowly dying in this solitary prison cell, I have no rights, no hope. So why not take my destiny into my own hands, and die for a principle?”
While the U.S. government portrayed a situation where the hunger strikers were being given medical attention, lawyers for some of the men claim that the tubes used to force feed them were “the thickness of a finger” and “were viewed by the detainees as objects of torture.”
According to attorney Julia Tarver, one of her clients, Yousef al-Shehri, had a tube inserted with “one [IRF member] holding his chin while the other held him back by his hair, and a medical staff member forcibly inserted the tube in his nose and down his throat” and into his stomach. “No anesthesia or sedative was provided to alleviate the obvious trauma of the procedure.” Tarver said this method caused al-Shehri and others to vomit “substantial amounts of blood.”
This was painful enough, but al-Shehri, described the removal of the tubes as “unbearable,” causing him to pass out from the pain.
According to Tarver, “Nasal gastric (NG) tubes [were removed] by placing a foot on one end of the tube and yanking the detainee’s head back by his hair, causing the tube to be painfully ejected from the detainee’s nose. Then, in front of the Guantanamo physicians … the guards took NG tubes from one detainee, and with no sanitization whatsoever, reinserted it into the nose of a different detainee. When these tubes were reinserted, the detainees could see the blood and stomach bile from the other detainees remaining on the tubes.” Medical staff, according to Tarver, made no effort to intervene. This was one of many incidents where IRF teams facilitated such force-feeding.
Aside from hunger strikes, other forms of resistance were met with brutal reprisal. Tarek Dergoul, a prisoner interviewed by Human Rights Watch, described how IRF teams beat him because he “often refused to cooperate with cell searches during prayer time. One reason was that they would abuse the Quran. Another was that the guards deliberately felt up my private parts under the guise of searching me.”
Dergoul said, “If I refused a cell search, MPs would call the Extreme Reaction Force, who came in riot gear with plastic shields and pepper spray. The Extreme Reaction Force entered the cell, ran in and pinned me down after spraying me with pepper spray and attacked me. The pepper spray caused me to vomit on several occasions. They poked their fingers in my eyes, banged my head on the floor and kicked and punched me and tied me up like a beast. They often forced my head into the toilet.”
Jamal al-Harith claims he was beaten by a five-man IRF team for refusing an injection: “I was terrified of what they were going to do. I had seen victims of [IRF] being paraded in front of my cell. They were battered and bruised into submission. It was a horrible sight and a frequent sight. … They were really gung-ho, hyped up and aggressive. One of them attacked me really hard and left me with a deep red mark from my backbone down to my knee. I thought I was bleeding, but it was just really bad bruising.”
The IRF-ing of Army Sgt. 1st Class Sean Baker
Ironically, perhaps the most well-publicized case of abuse by this force was not inflicted on a Guantanamo prisoner, but on an active-duty U.S. soldier and Gulf War veteran.
In January 2003, Sgt. Sean Baker was ordered to participate in an IRF training drill at Guantánamo where he would play the role of an uncooperative prisoner. Sgt. Baker says he was ordered by his superior to take off his military uniform and put on an orange jumpsuit like those worn by prisoners. He was told to yell out the code word “red” if the situation became unbearable, or he wanted his fellow soldiers to stop.
According to sworn statements, upon entering his cell, IRF members thought they were restraining an actual prisoner. As Sgt. Baker later described:
They grabbed my arms, my legs, twisted me up and, unfortunately, one of the individuals got up on my back from behind and put pressure down on me while I was face down. Then he — the same individual — reached around and began to choke me and press my head down against the steel floor. After several seconds, 20 to 30 seconds, it seemed like an eternity because I couldn’t breathe. When I couldn’t breathe, I began to panic and I gave the code word I was supposed to give to stop the exercise, which was ‘red.’ … That individual slammed my head against the floor and continued to choke me. Somehow I got enough air. I muttered out: ‘I’m a U.S. soldier. I’m a U.S. soldier.’
Sgt. Baker said his head was slammed once more, and after groaning “I’m a U.S. soldier” one more time, “I heard them say, ‘Whoa, whoa, whoa,’ you know, like … he was telling the other guy to stop.”
According to CBS:
Bloodied and disoriented, Baker somehow made it back to his unit, and his first thought was to get hold of the videotape. “I said, ‘Go get the tape,’ ” recalls Baker. ” ‘They’ve got a tape. Go get the tape.’ My squad leader went to get the tape.”
Every extraction drill at Guantanamo was routinely videotaped, and the tape of this drill would show what happened. But Baker says his squad leader came back and said, “There is no tape.”
The New York Times later reported that the military “says it can’t find a videotape that is believed to have been made of the incident.” Baker was soon diagnosed with traumatic brain injury. He began suffering seizures, sometimes 10 to 12 per day.
“This was just one typical incident, and Baker was recognizable as an American,” says Horton. “But it gives a good flavor of what the Gitmo detainees went through, which was generally worse.”
IRF-ing Continues Under Obama
On Jan. 7, 2009, a prisoner named Yasin Ismael threw a shoe in frustration at the inside of a cage to which he had been confined. The guards accused Ismael of attacking them and called in an IRF team.
According to his attorneys, “The team shackled him, and he put up no resistance. They then beat him. They blocked his nose and mouth until he felt that he would suffocate and hit him repeatedly in the ribs and head. They then took him back to his cell. As he was being taken back, a guard urinated on his head. Mr. Ismael was badly injured, and his ear started to bleed, leaving a large stain on his pillow.”
Less than two weeks later, on Jan. 22, newly inaugurated President Obama issued an executive order requiring the closure of Guantánamo within a year and also ordered a review of the status of the prisoners held there, requiring “humane standards of confinement” in accordance with the Geneva Conventions.
But one month later, the Center for Constitutional Rights released a report titled “Conditions of Confinement at Guantánamo: Still In Violation of the Law,” which found that abuses continued. In fact, one Guantanamo lawyer, Ahmed Ghappour, said that his clients were reporting “a ramping up in abuse” since Obama was elected, including “beatings, the dislocation of limbs, spraying of pepper spray into closed cells, applying pepper spray to toilet paper and over-force feeding detainees who are on hunger strike,” according to Reuters.
“Certainly in my experience there have been many, many more reported incidents of abuse since the inauguration,” Ghappour said.
While the dominant media coverage of the U.S. torture apparatus has portrayed these tactics as part of a “Bush era” system that Obama has now ended, when it comes to the IRF teams, that is simply not true. “[D]etainees live in constant fear of physical violence. Frequent attacks by IRF teams heighten this anxiety and reinforce that violence can be inflicted by the guards at any moment for any perceived infraction, or sometimes without provocation or explanation,” according to CCR.
In early February 2009, at least 16 men were on hunger strike at Guantanamo’s Camp 6 and refused to leave their cells for “force feeding.” IRF teams violently extracted them from their cells with the “men being dragged, beaten and stepped on, and their arms and fingers twisted painfully.” Tubes were then forced down their noses, which one prisoner described as “torture, torture, torture.”
In April, Mohammad al-Qurani, a 21-year-old Guantánamo prisoner from Chad managed to call Al-Jazeera and described a recent beating: “This treatment started about 20 days before Obama came into power, and since then I’ve been subjected to it almost every day,” he said. “Since Obama took charge, he has not shown us that anything will change.”
Describing a specific incident, which took place after change in the U.S. administration, al-Qurani said he had refused to leave his cell because they were “not granting me my rights,” such as being able to walk around, interact with other inmates and have “normal food.”
A group of six soldiers wearing protective gear and helmets entered his cell, accompanied by one soldier carrying a camera and one with tear gas, he said.
“They had a thick rubber or plastic baton they beat me with. They emptied out about two canisters of tear gas on me,” he told Al-Jazeera.
“After I stopped talking, and tears were flowing from my eyes, I could hardly see or breathe.
“They then beat me again to the ground, one of them held my head and beat it against the ground. I started screaming to his senior ‘see what he’s doing, see what he’s doing’ [but] his senior started laughing and said ‘he’s doing his job.’”
In another incident after Obama’s inauguration, prisoner Khan Tumani began smearing excrement on the walls of his cell to protest his treatment. According to his lawyer, when he “did not clean up the excrement, a large IRF team of 10 guards was ordered to his cell and beat him severely. The guards sprayed so much tear gas or other noxious substance after the beating that it made at least one of the guards vomit. Mr. Khan Tumani’s skin was still red and burning from the gas days later.”
The CCR has called on the Obama administration to immediately end the use of the IRF teams at Guantánamo. Horton, meanwhile, says “detainees should be entitled to compensation for injuries they suffered.”
As the abuse continues at Guantánamo, and powerful congressional leaders from both parties and the White House fiercely resist the appointment of an independent special prosecutor, the sad fact is that the best chance for justice for the victims of U.S. torture may well be an ocean away in Madrid, Spain.
“The Obama administration should not need pressure from abroad to uphold our own laws and initiate a criminal investigation in the U.S.,” says Vince Warren, CCR’s executive director. “I hope the Spanish cases will impress on the president and Attorney General Eric Holder how seriously the rest of the world takes these crimes and show them the issue will not go away.”
Tags: Abu Ghraib, aclu, amrit singh, amy goodman, bagram, baltasar garzon, bethine church, bush administration, bush six, carl levin, church committee, cia assassination, cia videotapes, COINTELPRO, denis moynihan, detainees, Diane Feinstein, Dick Cheney, enhanced interrogation, frank church, geneva conventions, Guantanamo, independent prosecutor, John Conyers, martin luther king, Nancy Pelosi, nuremburg, patrick leahy, pentagon photos, president obama, roger hollander, rumsfeld, senate armed services, torture, torture memos, waterboarding, watergate, william hayes
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Published on Wednesday, April 29, 2009 by TruthDig.com
The Senate interest in investigation has backers in the U.S. House, from Speaker Nancy Pelosi, D-Calif., to Chairman of the House Judiciary Committee John Conyers, D-Mich., who told The Huffington Post recently, “We’re coming after these guys.”
Amrit Singh, staff attorney for the American Civil Liberties Union, said the Pentagon’s photos “provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib. Their disclosure is critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse.” The ACLU also won a ruling to obtain documents relating to the CIA’s destruction of 92 videotapes of harsh interrogations. The tapes are gone, supposedly, but notes about the content of the tapes remain, and a federal judge has ordered their release.
In December 2002, when the Bush torture program was well under way, then-Secretary of Defense Donald Rumsfeld signed off on a series of harsh interrogation techniques described in a memo written by William Hayes II (one of the “Bush Six” being investigated by Spanish Judge Baltasar Garzon). At the bottom of the memo, under his signature, Rumsfeld scrawled: “I stand for 8-10 hours a day. Why is standing limited to 4 hours?” Rumsfeld zealously classified information in his years in government.
A similar crisis confronted the U.S. public in the mid-1970s. While the Watergate scandal was unfolding, widespread evidence was mounting of illegal government activity, including domestic spying and the infiltration and disruption of legal political groups, mostly anti-war groups, in a broad-based, secret government crackdown on dissent. In response, the Senate Select Committee to Study Governmental Operations With Respect to Intelligence Activities was formed. It came to be known as the Church Committee, named after its chairman, Idaho Democratic Sen. Frank Church. The Church Committee documented and exposed extraordinary activities on the CIA and FBI, such as CIA efforts to assassinate foreign leaders, and the FBI’s COINTELPRO (counterintelligence) program, which extensively spied on prominent leaders like Dr. Martin Luther King Jr.
It is not only the practices that are similar, but the people. Frederick A.O. Schwarz Jr., general counsel to the Church Committee, noted two people who were active in the Ford White House and attempted to block the committee’s work: “Rumsfeld and then [Dick] Cheney were people who felt that nothing should be known about these secret operations, and there should be as much disruption as possible.”
Church’s widow, Bethine Church, now 86, continues to be very politically active in Idaho. She was so active in Washington in the 1970s that she was known as “Idaho’s third senator.” She said there needs to be a similar investigation today: “When you think of all the things that the Church Committee tried to straighten out and when you think of the terrific secrecy that Cheney and all of these people dealt with, they were always secretive about everything, and they didn’t want anything known. I think people have to know what went on. And that’s why I think an independent committee [is needed], outside of the Congress, that just looked at the whole problem and everything that happened.”
Denis Moynihan contributed research to this column.
It’s Bush and Cheney, Damn It April 22, 2009Posted by rogerhollander in About George Bush, About Human Rights, About Justice, About Repubicans, Criminal Justice, Dick Cheney, George W. Bush, Torture.
Tags: Abu Ghraib, Alberto Gonzales, bagram, baltasar garzon, bush administration, CIA torture, david addington, democratic party, Dick Cheney, geneva conventions, George Bush, Guantanamo, Iraq occupation, Iraq war, jay bybee, john yoo, justice department, neo-fascist right, nuremburg, president obama, Rahm Emanuel, renditions, roger hollander, rumsfeld, signing statements, torture memos, warrantless wiretapping, waterboarding
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Roger Hollander, www.rogerhollander.com, April 22, 2009
No one is more outraged than I am about the Bush administrations gross violations of domestic and international law and the Obama administration complicity in what amounts to no less than a cover-up. The release of the infamous “torture memos” along with Obama and Rahm Emanuel granting immunity to both the lawyers who wrote the phony justifications for torture or the CIA agents who carried out the acts of barbarism, has us debating which level of subalterns should be held legally accountable.
While there is no doubt given the Geneva Conventions and the Nuremberg principles that no one who participated in these crimes against humanity should be let off the hook, there is a long tradition in American jurisprudence of convicting lower level criminals while those who had the power to make the decisions go scot free. The Abu Ghraib convictions are a case in point.
While it is impossible not to support initiatives such as the possible indictment of the “Bush Six” by Spanish Justice Baltasar Garzón, the movement to impeach Justice Jay Bybee, and various other proposals for Congressional investigation, Commissions of Inquiry, etc.; if the focus is not on Bush, Cheney, Rumsfeld, and the others at the highest level of government, then there is virtually no chance that the kind of justice demanded by the events will be fulfilled.
Realistically speaking, given the strength of the neo- Fascist Right in the country along with the high degree of spinelessness if not outright complicity within the Democratic Party, it is hard to picture a scenario where criminal charges are laid and prosecuted against Bush and Cheney. But I would argue that this is no time for realism, that the war crimes and constitutional violations that were carried out with impunity are too serious to overlook in the name of pragmatism.
As we reel in disbelief and disgust at the perversion of language and morality that are contained in the newly released torture memos, we must not lose sight of the enormity of the overall thrust of the crimes committed by the Bush/Cheney cabal, the warrantless wiretapping, the extraordinary renditons, the politicization of the Justice Department, the signing statements, the intelligence neglect that enabled 9/11, and – above all else – the deceit and lies that were used to justify the illegal invasion and occupation of Iraq, the consequence of which in terms of death and human suffering is beyond comprehension.
There is an old Negro spiritual that we sung during the Civil Rights struggles of the 1960s: “Keep your eyes on the prize …” The Prize is no less than the indictment and conviction of George W. Bush and Dick Cheney. From there we move on to lesser but no less guilty culprits.
Torturers Should Be Punished April 22, 2009Posted by rogerhollander in Criminal Justice, Torture.
Tags: aberto gonzales, Abu Ghraib, Abu Zubaydah, aclu, amy goodman, bagram, baltasar garzon, congress, david addington, Diane Feinstein, eric holder, geneva conventions, Guantanamo, impeach bybee, International law, international red cross, jay bybee, john yoo, Mitchell Jessen & Associates, nuremberg prinicples, office of legal counsel, olc, president obama, Rahm Emanuel, roger hollander, rumsfeld, sere training, torture, torture memos, torture techniques, US constitution, waterboarding, william haynes
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Published on Wednesday, April 22, 2009 by TruthDig.com
According to the American Civil Liberties Union, the OLC under Bush “became a facilitator for illegal government conduct, issuing dozens of memos meant to permit gross violations of domestic and international law.”
The memos authorize what the International Committee of the Red Cross called, in a leaked report, “treatment and interrogation techniques … that amounted to torture.”
These torture techniques were developed by two psychologists based in Spokane, Wash.: James Mitchell and Bruce Jessen. Their company, , provided specialized training to members of the U.S. military to deal with capture by enemy forces. The training is called SERE, for Survival, Evasion, Resistance, Escape. Mitchell and Jessen, both psychologists, were contracted by the U.S. government to train interrogators with techniques they claimed would break prisoners.
They reverse-engineered the SERE training, originally developed to help people withstand and survive torture, to train a new generation of torturers.
The memos provide gruesome details of the torture. Waterboarding was used hundreds of times on a number of prisoners. The Bybee memo includes this Kafkaesque authorization: “You would like to place [Abu] Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him.”
After President Barack Obama said there should be no prosecutions, he was received with great fanfare at the CIA this week. Mark Benjamin, the reporter who originally broke the Mitchell and Jessen story, said when I questioned him about Obama’s position: “If you look at the president’s statements and you combine them with the statements of Rahm Emanuel, the chief of staff, and Eric Holder, the attorney general … you will see that over the last couple of days the Obama administration has announced that no one, not the people who carried out the torture program or the people who designed the program or the people that authorized the program or the people who said that it was legal-even though they knew that it frankly wasn’t-none of those people will ever face charges. The attorney general has announced that … the government will pay the legal fees for anybody who is brought up on any charges anywhere in the world or has to go before Congress. They will be provided attorneys … they have been given this blanket immunity … in return for nothing.”
Senate Intelligence Committee Chair Dianne Feinstein asked Obama to hold off on ruling out prosecutions until her panel finishes an investigation during the next six months. Though Obama promises to let the torturers go, others are pursuing them. Bybee is now a federal judge. A grass-roots movement, including Common Cause and the Center for Constitutional Rights, is calling on Congress to impeach Bybee. In Spain, Judge Baltasar Garzon, who got Chilean dictator Augusto Pinochet indicted for crimes against humanity, has named Bybee and five others as targets of a prosecution.
For years, people have felt they have been hitting their heads against walls (some suffered this literally, as the memos detail). On Election Day, it looked like that wall had become a door. But that door is open only a crack. Whether it is kicked open or slammed shut is not up to the president. Though he may occupy the most powerful office on Earth, there is a force more powerful: committed people demanding change. We need a universal standard of justice. Torturers should be punished.
Denis Moynihan contributed research to this column.
The Differing Views of the ‘Rule of Law’ in Spain and the US April 14, 2009Posted by rogerhollander in Criminal Justice, Human Rights, Torture.
Tags: Alberto Gonzales, baltasar garzon, CIA torture, constitution, Criminal Justice, david addington, Diane Feinstein, doj, douglas feith, eric holder, geneva conventions, glenn greenwald, Guantanamo, jay bybee, jay rockerfeller, jim white, john brennan, john yoo, justice department, leon panetta, michael hayden, michael isikof, Obama, olc torture memos, rachel maddow, roger hollander, scott horton, spanish justice, stephen kappes, torture, torture memos, war criminals, william haynes
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Published on Tuesday, April 14, 2009 by Salon.com
Scott Horton reports this morning that, in Spain, “prosecutors have decided to press forward with a criminal investigation targeting former U.S. Attorney General Alberto Gonzales and five top associates [John Yoo, Jay Bybee, David Addington, Doug Feith and William Haynes] over their role in the torture of five Spanish citizens held at Guantánamo.” Spain not only has the right under the Geneva Conventions and the Convention Against Torture to prosecute foreign officials for torturing its citizens, but it — like the U.S. — has the affirmative obligation to do so. (Indeed, the Bush administration itself insisted just last year that the U.S. the right to criminally prosecute foreign officials for ordering acts of torture even in the absence of an accusation that any of the victims were American).
As Hilzoy argues, however, the primary obligation for these prosecutions lies with the country whose officials authorized the war crimes — the United States:
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.
That the U.S. has the legal obligation under the U.S. Constitution, our own laws and international treaties to commence criminal investigations is simply undeniable. That is just a fact. Yet it’s hard to overstate how far away we are from fulfilling our legal obligations to impose accountability on our own torturers and war criminals.
The barriers to these prosecutions are numerous, but one of the principal obstacles is that CIA Director Leon Panetta has been emphatically demanding that there be no investigations of any government officials whose conduct was declared legal by DOJ lawyers (i.e., the very individuals the Spanish are now investigating for war crimes). And it’s not surprising that Panetta has taken this position given that at least two of his top deputies at the CIA are among those implicated, to one degree or another, in the torture regime, as John Sifton detailed earlier this month at The Daily Beast:
The New York Times reported that Leon Panetta, the current CIA director, has taken the position that “no one who took actions based on legal guidance from the Department of Justice at the time should be investigated, let alone punished.” Yet a number of CIA officials implicated in the torture program not only remain at the highest levels of the agency, but are also advising Panetta. Panetta’s attempt to suppress the issue is making Bush’s policy into the Obama administration’s dirty laundry.
Take Stephen Kappes. At the time of the worst torture sessions outlined in the ICRC report, Kappes served as a senior official in the Directorate of Operations-the operational part of the CIA that oversees paramilitary operations as well as the high-value detention program. (The directorate of operations is now known as the National Clandestine Service.) Panetta has kept Kappes as deputy director of the CIA-the number two official in the agency.
And why is it that Stephen Kappes was made the number 2 officials at the CIA despite his being in a key CIA position during the implementation of America’s torture regime? Because the two most important Senate Democrats on intelligence matters – Jay Rockefeller and Dianne Feinstein — insisted that he be so empowered as a condition for their supporting Panetta’s nomination, after both of them first demanded that Kappes actually be made CIA Director. Here’s what Andrea Mitchell reported back in January:
NBC News has learned that Senate Democrats — including Dianne Feinstein and Jay Rockefeller, who are the incoming and outgoing Intelligence chairmen — have privately recommended a career CIA officer to head the agency.
Democratic sources indicate that both have recommended deputy CIA Director Steve Kappes, a veteran CIA intelligence officer who is widely credited with getting the Libyans to give up their nuclear program.
Just to give a sense for how our political class thinks about torture, here is what Mitchell appended to the end of her report: “One potential downside for Kappes: Like former counter-terror chief John Brennan, some critics says [sic] he had line authority over controversial decisions involving interrogation and detention.” So Kappes’ connection to the CIA’s torture program was a “potential downside” to his becoming CIA Director. A potential downside. Once Obama chose Panetta rather than Kappes, Rockefeller and Feinstein agreed to support Panetta’s nomination only once they were given assurances that Kappes would become Panetta’s deputy.
This Thursday will be a very significant test for how much influence the anti-accountability camp exerts within the Obama administration and for how serious Obama’s pledges of transparency were, as that day is the latest deadline for the Obama DOJ either to release the three key OLC torture-authorizing memos, release them in heavily redacted form, or refuse to release them at all. It has been widely reported that a “war” has broken out within the Obama administration over their release, with key Bush-era intelligence officials — such as Obama’s top counter-terrorism aide John Brennan and ex-CIA Director Michael Hayden — demanding the ongoing concealment of the memos. Those torture memos are reputed to be among the most vivid torture documents of the Bush era, and thus will almost certainly fuel the flames of investigations and prosecution — both here and internationally. That is what has prompted the “war” over their disclosure. It’s hardly a surprise that if you empower the very people most connected to the Bush CIA, there will be substantial forces blocking any attempt to bring accountability under the rule of law for the crimes that were committed.
Just think about what all this means: not only are we failing to investigate or indict those who authorized torture, but we haven’t even reached the point yet where we’ve decided that these crimes are bad enough that those implicated ought to be barred from serving in the highest positions in our Government. While Spain proceeds to fulfill the Obama administration’s duties to investigate and prosecute our war criminals, some of those most implicated remain in positions of high authority within our own intelligence and counter-terrorism agencies — thanks to Senate Democrats such as Feinstein and Rockefeller.
Our political class has simply never come to terms with how severe are these war crimes and how acquiescent to and outright supportive so many officials from both parties — and so many of our media stars — were. That’s why huge numbers, arguably majorities, of Americans want criminal investigations to commence, but our political class remains virtually unified against them — notwithstanding that they are legally required — because, as has been conclusively proven over and over, the last thing our political and media elites care about is the “rule of law.” That will become more apparent as other countries, such as Spain, demonstrate that they actually take things like that seriously.
* * * * *
On a related note, Rachel Maddow last night potently eviscerated Barack Obama for his attempts to deny Bagram detainees any rights of any kind, and she and Newsweek‘s Michael Isikoff then discussed the significance of Thursday’s deadline for the release of the OLC torture memos:
UPDATE: In comments, Jim White highlights a fact from Horton’s story that I intended but neglected to mention: the Spanish “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.” As White points out, that is how war crimes investigations are intended to proceed under numerous treaty provisions by which the U.S. has bound itself: namely, the country whose officials commit the crimes have the primary obligation to investigate and hold the criminals accountable. But other treaty signatories are not only entitled, but required, to commence such proceedings if the violating country refuses or otherwise fails to do so.
Thus, the only way to object to what Spain is doing here is if one: (a) suffers from total ignorance of the basic provisions of Geneva Conventions and the Convention Against Torture; (b) believes that the U.S. has no obligation to abide by its treaties even though the U.S. Constitution provides that such treaties are “the supreme law of the land”; and/or (c) believes that the U.S. need not abide by rules we impose on other countries, such as when we prosecuted other countries’ leaders for war crimes in the past. None of those is a particularly noble excuse.
The Bush Six to Be Indicted April 14, 2009Posted by rogerhollander in Dick Cheney, Human Rights, Torture.
Tags: Alberto Gonzales, baltasar garzon, bush six, cia backsites, david addington, douglas feith, geneva conventions, Guantanamo, human rights, International law, jay bybee, john yoo, jose zapatero, Obama, pinochet, rendition, roger hollander, rule of law, scott horton, spainish justice, torture, torture memo, william haynes
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Published on Tuesday, April 14, 2009 by The Daily Beast
Spanish prosecutors will seek criminal charges against Alberto Gonzales and five high-ranking Bush administration officials for sanctioning torture at Guantánamo.
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 Guantánamo, 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 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.
But prosecutors will also ask that Judge Garzón, an internationally known figure due to his management of the case against former Chilean dictator Augusto Pinochet and other high-profile cases, step aside. The case originally came to Garzón because he presided over efforts to bring terrorism charges against the five Spaniards previously held at Guantánamo. Spanish prosecutors consider it “awkward” for the same judge to have both the case against former U.S. officials based on the possible torture of the five Spaniards at Guantánamo and the case against those very same Spaniards. A source close to the prosecution also noted that there was concern about the reaction to the case in some parts of the U.S. media, where it had been viewed, incorrectly, as a sort of personal frolic of Judge Garzón. Instead, the prosecutors will ask Garzón to transfer the case to Judge Ismail Moreno, who is currently handling an investigation into kidnapping charges surrounding the CIA’s use of facilities as a safe harbor in connection with the seizure of Khalid el-Masri, a German greengrocer who was seized and held at various CIA blacksites for about half a year as a result of mistaken identity. The decision on the transfer will be up to Judge Garzón in the first instance, and he is expected to make a quick ruling. If he denies the request, it may be appealed.
Judge Garzón’s name grabs headlines in Spain today less because of his involvement in the Gonzales torture case than because of his supervision of the Gürtel affair, in which leading figures of the conservative Partido Popular in Madrid and Valencia are now under investigation or indictment on suspicions of corruptly awarding public-works contracts. Garzón is also the nation’s leading counterterrorism judge, responsible for hundreds of investigations targeting Basque terrorist groups, as well as a major recent effort to identify and root out al Qaeda affiliates operating in the Spanish enclaves of North Africa.
Announcement of the prosecutor’s decision was delayed until after the Easter holiday in order not to interfere with a series of meetings between President Barack Obama and Spanish Prime Minister José Zapatero. However, contrary to a claim contained in an editorial on April 8 in the Wall Street Journal, 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.Spanish officials are highly conscious of the political context of the case and have measured the Obama administration’s low-key reaction attentively. Although Spain is a NATO ally that initially supported “the war on terror” under Bush with a commitment of troops in both Iraq and Afghanistan, relations with the Bush administration deteriorated after Zapatero became prime minister and acted quickly to withdraw the Spanish contingent in Iraq. In the 2008 presidential campaign, Republican John McCain referred to Spain as a hostile state in comments that mystified Spaniards (it appears that McCain may have confused Spain with Venezuela and Zapatero with Hugo Chávez). Recently, the United States and Spain also wrangled over Spain’s decision to withdraw its troop commitment in Kosovo as well. Both Zapatero and Obama, however, have given a high priority to improving relations between the two long-standing allies. Spanish newspapers hailed the fact that Obama referred to Zapatero three times as “my good friend” during the recent European summit meetings, a sharp contrast with meetings at which former President Bush gave Zapatero a cold shoulder.
Both Washington and Madrid appear determined not to allow the pending criminal investigation to get in the way of improved relations, which both desire, particularly in regard to coordinated economic policy to confront the current financial crisis and a reshaped NATO mandate for action in Afghanistan. With the case now proceeding, that will be more of a challenge. The reaction on American editorial pages is divided-some questioning sharply why the Obama administration is not conducting an investigation, which is implicitly the question raised by the Spanish prosecutors. Publications loyal to the Bush team argue that the Spanish investigation is an “intrusion” into American affairs, even when those affairs involve the torture of five Spaniards on Cuba.
The Bush Six labored at length to create a legal black hole in which they could implement their policies safe from the scrutiny of American courts and the American media. Perhaps they achieved much of their objective, but the law of unintended consequences has kicked in. If U.S. courts and prosecutors will not address the matter because of a lack of jurisdiction, foreign courts appear only too happy to step in.
Scott Horton is a law professor and writer on legal and national-security affairs for Harper’s magazine and The American Lawyer, among other publications.