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Tilting at Windmills

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April 13, 2009
By: Hilzoy

Prosecute Them

Scott Horton at the Daily Beast:

"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 Guantanamo, 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 Guantanamo. 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 Garzon Real, the investigating judge, accepted the complaint and referred it to Spanish prosecutors for a view as to whether they would accept the case and press it forward. "The evidence provided was more than sufficient to justify a more comprehensive investigation," one of the lawyers associated with the prosecution stated. (...)

The 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."

As I have said before, we should investigate and prosecute members of the Bush administration who authorized torture. They have violated our own laws, and respect for the rule of law requires that holding high office does not get you off the hook when you knowingly break the law. But investigating and prosecuting people who authorize torture is also required under the Convention Against Torture, to which we are a signatory. It is not optional. It is not something that we can put aside because it would be too divisive.

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.

Hilzoy 11:44 PM Permalink | Trackbacks | Comments (30)

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Comments

"He should not outsource his Constitutional obligations to Spain." Why not? If the Spaniards tortured some of our citizens, would it matter whether they went after their own people, or sat back and told us to have at it?

Posted by: sean on April 13, 2009 at 11:54 PM | PERMALINK

I can't believe they've decided to withstand a Bill O'Reilly boycott in order to go through with this. I thought for sure that threat would make them change their minds if anything could.

Posted by: Freddie on April 13, 2009 at 11:56 PM | PERMALINK

i am having a hard time believing that anyone will prosecute the bastards. but the spaniards give me hope.

it's more than sad that an american should feel more hopeful at the effectiveness of a foreign legal system than their own.

Posted by: karen marie on April 13, 2009 at 11:57 PM | PERMALINK

unlike the Repubs, who sort of get the notion of an opposition party (albeit as gracelessly as humanly possible), the Dems lacked the spine to filibuster Bybee. Now we have the sad spectacle of a sitting Circuit Court judge facing international criminal charges. If convicted, will Dems have the morals and the spine to impeach him? or will Pelosi take that off the table, too?

Posted by: zeitgeist on April 14, 2009 at 12:07 AM | PERMALINK

One comment only Hilzoy....Amen!

Posted by: dweb on April 14, 2009 at 1:30 AM | PERMALINK

$5 says Obama threatens Spain if they don't stop this inquiry. This little unpleasantness goes away, and we'll keep sharing intelligence with you. Keep up the shenanigans, and you're on your own.

It worked to cow Britain.

Posted by: Tree on April 14, 2009 at 1:56 AM | PERMALINK

Imagine what a wiser president could have achieved, when handed the global, political capital that Bush found himself with on 9/11.

And consider what he used it for ...

Posted by: SteinL on April 14, 2009 at 2:40 AM | PERMALINK

I'd prefer to see them all tried and convicted by an international war crimes tribunal.

However, I have no problem with Spain taking a first crack at them.

Posted by: Disputo on April 14, 2009 at 2:44 AM | PERMALINK


Americans believe in the rule of law. But we cannot just say it, we must prove it.


The 8-year Bush era was a national nightmare. His response to 911 was anything but courageous. If the rule of law can be suspended whenever the president deems, selectively or otherwise, claiming national security interest, then over 2 centuries of adhering to the principles and moral precepts and Constitutional laws will have been for naught.

Perhaps Obama will allow Spain to pursue this for the simple fact with so many extraordinary events on his plate right now "politically" it might be a distraction or cost him political capital.

While I can understand that position, the law trumps politics. In fact it might be more of a political risk to ignore the abuses and crimes that took place under the Bush administration. Furthermore it has been well-documented that many democracies have collapsed when the people permitted their leaders to abandon the rule of law in the face of alleged external threats.

By appointing an independent investigator (my choice: Fitzgerald) to investigate, follow leads wherever they go, finds evidence that warrant prosecutions and are successful there would be no political price to pay. But if Republicans frame it as "witch-hunts," political retribution and/or political pay-back they will pay the price.

The rule of law was never intended to be compromised nor our values as a nation. Torture is not an either/or situation. There is no middle-ground. Laws, domestic and international, were broken. To regain respect and standing on the world stage it is America's responsibility to fulfill its legally bound duty to investigate whether the Bush administration, regardless the outcome, committed war crimes.

The strength of America's conviction and sincere commitment to the rule of law will be known by deed, not word. That will determine America's future role in the global community.

We cannot, must not ignore what happened while Bush was in office. To do so comes at our peril.

Posted by: serena1313 on April 14, 2009 at 4:43 AM | PERMALINK

He should not outsource his Constitutional obligations to Spain.

Actually, Hilzoy, he should---and I'll explain why.

First off, you know what the mood of "a certain minority" in this country holds right now; a mood whereby they'd love the opportunity of breaking "some of their own" out of the perceived gulag. If we agree to extrapolate this to a possible day whereby "what is justly right, and rightfully just" is once again supplanted by a government that "creates its own version of reality, because it says it can do so", any criminal actions against Alberto-Zilla and his fellow cronies would merely be swept under yet another rug, as they are freed and forgiven.

In Spain, there would be no such unilateral recourse available for "the next Bushylvanian era", should it ever gain the opportunity to once again read its ugly head behind the desk of the Oval Office.

Mr. Obama knows the Law---he's taught it, for crying out loud---and he understands that the best way to defeat the potential weakness of a law's "disinterpretation" (a thing that the Bushylvanians were incredulously famous for) is to move the actionable enforcement against a domestic felon beyond the range of that disinterpretation's reach.

It is the legal form of rendition known as extradition.

Also---once on Spanish soil, which just happens to be European soil, these six might easily be transferred to the Hague, and tried under the Geneva Conventions. They still consider Guantanamo "detainees" to be prisoners of war---and abuses against prisoners of war, including acts recognized under the Conventions as torture, constitute "War Crimes."

This is the avenue whereby we might not only finally see justice rendered against the true criminals---up to and including the senior cadre of the Bush administration (spoiler alert: Cheney, Rumsfeld, and---dare I say it---Dubya himself)---but we likewise put the full breadth of the Atlantic Ocean between the Criminals as their tea-bagging hence-whiners....

Posted by: S.Waybright on April 14, 2009 at 6:01 AM | PERMALINK

This from and editorial in today's NY Times about Fujimori's conviction:

"International tribunals, like those dealing with Rwanda, Yugoslavia or Sierra Leone, are an essential last resort in the battle with tyranny. They are unlikely to have the cleansing or educational power of a country’s own judicial system affirming the primacy of law. However popular Mr. Fujimori may once have been in Peru, by the end of his trial, public-opinion polls found that a large majority of Peruvians agreed that he was guilty as charged."

Posted by: Marc on April 14, 2009 at 7:33 AM | PERMALINK

It is probably best to think of this as a change of venue to get around the biggest obstacles to justice in these matters: the fanatical conservative opposition block in the Senate and their dog-loyal supporters in the Beltway media.

Obama is pushing an economic recovery program and health reform vital to the immediate well-being of a couple hundred million Americans and a couple of billion working-class foreigners stricken by the recession. He also has to get his people in control of an enormous bureaucracy thoroughly compromised and corrupted by eight years of Cheney/Rove manipulation.

Everything about Obama's past record says he wants to and eventually will enforce the law, but his political history and actions since the elections suggest that he is going to stall on the prosecution issue as long as he can.

Once Holder starts arresting people and Panetta starts firing people the Civil War is on in the Senate and the government is going to be virtually paralyzed for weeks or even months.

I expect Obama will do what he has to do only after he has his primary agenda rolling and after he has collected court decisions to use as political weapons. Next fall, earliest, unless someone forces his hand on any specific cases.

In the meantime, the Spanish prosectutor is keeping a low profile and accumulating evidence that could be of great future use to the DOJ or a Congressional investigation. and critical to the long-term health of this country. that he has to

Posted by: Midland on April 14, 2009 at 8:05 AM | PERMALINK

You are totally correct the law requires the US Justice department to investigate and prosecute all those who knowingly broke US and international law.
To not do so is in itself breaking the law.

The Bushlite administration seems to be content to continue the pattern of Executive Branch lawlessness.

Posted by: Marnie on April 14, 2009 at 8:28 AM | PERMALINK

It is embarrassing that another country should have to clean up after the US. What it says about our country is beyond sad.

Posted by: Betty on April 14, 2009 at 8:41 AM | PERMALINK

Every nation whose citizens were victims of Bush's illegal policies should initiate its own inquiry. When Cheney, Yoo et al. are done serving their sentences (serially, not concurrently) in the prisons of these sundry nations --- assuming they are still alive --- then bring 'em home for trial as traitors to the Constitution. In the meantime, we can save a ton of money we don't have by outsourcing the process.

Posted by: JeremiadJ on April 14, 2009 at 9:02 AM | PERMALINK

"Everything about Obama's past record says he wants to and eventually will enforce the law"

including voting for the immunity law?

"but his political history and actions since the elections suggest that he is going to stall on the prosecution issue as long as he can"

the two statements don't really go together

"Once Holder starts arresting people and Panetta starts firing people"

how will he fire people? He already said that even investigating people who relied on "the law" as their superiors saw it is unwarranted.

"the government is going to be virtually paralyzed for weeks or even months"

oh no! Weeks! We must never do it then. There always will be some fiscal or national security issue affecting millions of people to worry about. Surely, such things are more important than dealing with torture.

Saying you won't even "investigate" -- investigations btw are long drawn out things providing lots of CYA opportunities -- is not somehow compelled by the things you list.

It is compelled by a failure of nerve or the idea == like some sort of blond bimbo stereotype who can't chew gum and walk at the same time == we must set our sights real low. The mean media and scary economic times compels it! Ack!

Posted by: Joe on April 14, 2009 at 10:07 AM | PERMALINK

The only proper response by President Obama to this indictment, if it actually comes to pass, would be to break all diplomatic relations with Spain and expel all Spanish diplomats from American soil.

What treaty gives the Spanish Government the power to sit in judgment on former officials of the United States Government for the advice they gave to the President in the course of their official duties? None, and for the Government of Spain to arrogate such power to itself is an assault on the sovereignty of the United States that, if left unchallenged by the American Government, will have long-lasting and unpleasant effects.

Why would anyone think that this will stop with the indictment of the political enemies of the current administration? You don't need to be a legal genius to to see what this precedent can lead to. I suppose if you think it would be a good idea to hand to our enemies around the world the ability to use foreign legal process to influence the foreign policy of the United States, then you might cheer this on. But if you value the sovereignty and independence of the United States you ought to despair.

I dearly hope that President Obama responds as the steward of American power and not as a self-serving politician happy to see his enemies hurt.

If President Obama and the Department of Justice want to prosecute these former officials for violations of American law, well, they can do so if they think the law was violated and that it would be a proper exercise of prosecutorial discretion to charge them.

Posted by: DBL on April 14, 2009 at 11:52 AM | PERMALINK

Just to clarify one point about which Hilzoy and Marnie seem to be confused.

There is no law that requires prosecutors to charge crimes about which they have knowledge. Prosecutors, as a matter of law, have discretion in deciding whether to charge, whom to charge and for what crimes. Courts have repeatedly thrown out attempts to try to force prosecutors to prosecute.

There are many reasons for this, including the fact that prosecutors have limited resources, and may have various political priorities that make some prosecutions more important to pursue than others.

The check on prosecutorial discretion is, of course, the ballot box. If you don't like how the prosecutor exercises his discretion, vote in another prosecutor - or, in the case of federal prosecutors, vote in another president since he appoints them all.

Posted by: DBL on April 14, 2009 at 12:14 PM | PERMALINK

Dude, the international anti-torture treaty that we signed gives the signatories the right to investigate and prosecute violations of the treaty if a country refuses or fails to take action against its citizens who committed such violations. The signatories made a collective judgment that torture was so horrific that they weren't going to allow people who practiced it to hide behind the sovereignty argument that you so passionately advocate.

Posted by: scott on April 14, 2009 at 12:43 PM | PERMALINK

What treaty gives the Spanish Government the power to sit in judgment on former officials of the United States Government for the advice they gave to the President in the course of their official duties? None, and for the Government of Spain to arrogate such power to itself is an assault on the sovereignty of the United States that, if left unchallenged by the American Government, will have long-lasting and unpleasant effects.

I don't remember your tender concern for the sovereignty of other countries when we invaded Iraq, lobbed missiles into Pakistan, and agreed that we could bomb Iran to smithereens if Bush woke up in the morning and he just felt like it.

Did I miss something? Or did you just not stop to think when you were agitating for regime change based on non-existent war crimes that this was going to come back and bite you in the ass when evidence of actual war crimes was discovered?

Posted by: trex on April 14, 2009 at 12:49 PM | PERMALINK

trex,

You make a very good point. If the US acedes to the Spanish assertion of power in this case, I suppose it won't have any defense once some judge somewhere indicts President Obama and his subordinates for his "targeted execution" policy of launching missiles at houses and cars thought to hold "enemy combatants," even though innocent civilians are certain to be killed along with them.

Oh, well, that was my point about where all this might lead. I'm glad you see it, too.

Posted by: DBL on April 14, 2009 at 12:54 PM | PERMALINK

scott,

You might try reading the convention. http://www.hrweb.org/legal/cat.html

As I read it, it doesn't give Spain any power to try former American administration officials on grounds of universal jurisdiction or anything like that. I suppose, if there's a claim that one of the six American officials was involved in torturing a Spanish citizen, and that constituted a violation of Spanish law, the convention would permit a Spanish prosecutor to bring that case. But I do not believe that is what is at issue here.

There is a whole process set out in the convention for states to complain that other states are not complying with the convention. See Articles 21 & 22. I don't think the Spanish Government is invoking those provisions, either.

No, this just seems to be a naked assertion of power by the Spanish Government to which, unfortunately, a lot of Americans are willing to go along because it targets their political enemies. I would suggest that you think about the consequences down the road.

Posted by: DBL on April 14, 2009 at 1:17 PM | PERMALINK

I did read it, and it is what's at issue here. These guys authorized torture practices that (this is a matter for proof) may have been used on Spanish nationals.

“The High Contracting Parties [signatories to the Geneva conventions, which includes the U.S.] undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

“Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case."

Depending on the facts, the Spanish may have a colorable case based on this provision, and waving it away without more is specious.

Posted by: scott on April 14, 2009 at 1:28 PM | PERMALINK

Oh, well, that was my point about where all this might lead. I'm glad you see it, too.

Well no, my point was that dipshits like you have no problem with America superceding the sovereignty of other countries even when it means hundreds of thousands have dying for it and hundreds of thousands more wounded. You

President Obama should absolutely be held to the standard of international law and I strenuously disagree with his policy of lobbing missiles into Pakistan, just as I disagree with his continuance of some of Bush's other policies regarding detainee rights and government secrecy, and I will lobby against them to put pressure on him to reverse course. If Pakistan or another country were to deign that this was a war crime then it would certainly force the issue so that all parties would have to take steps to clarify and hopefully end the practice.

So just to sum up: you only care about the law when it affects you. Other countries can be damned.

Posted by: trex on April 14, 2009 at 1:32 PM | PERMALINK
I'd prefer to see them all tried and convicted by an international war crimes tribunal.

International tribunals are a fallback measure for when states are unwilling or unable to fulfill their obligations under international law, not the preferred method for enforcing the law.

Posted by: cmdicely on April 14, 2009 at 1:42 PM | PERMALINK
What treaty gives the Spanish Government the power to sit in judgment on former officials of the United States Government for the advice they gave to the President in the course of their official duties?

The United Nations Convention Against Torture, which both the U.S. and Spain have ratified, requires states-parties to the convention to "take such measures as may be necessary to establish its jurisdiction [...] in cases where the alleged offender is present in any territory under its jurisdiction".

Beginning precedings to get to the point at which warrants for arrest can be issued providing for the detention and further proceedings against alleged offenders once they enter the territory of the state party involved would seem to be well within the scope of legitimate means of fulfilling that obligation, especially viewed in light of the arrest and investigation requirements of Article 6 and the prosecution requirements in Article 7.

Furthermore, as a sovereign state, Spain has jurisdiction to try any offense against its laws (including those of its laws that are its laws because they are international laws), committed by any person, anywhere, except where prohibited by treaty or other source of international law binding upon Spain, just as the US does (and the US Supreme Court has found that this power of sovereign states—both in the international sense, and U.S. states—includes the power to send armed agents to kidnap foreign nationals from their home nation, even one with which an extradition treaty exists, and try them rather than going through the extradition process [see, e.g., United States v. Alvarez-Machain, 504 U.S. 655 (1992)], and the Ker-Frisbie doctrine more generally.)

So, applying the same standards applied by the U.S. courts to actions of the U.S. government and those of U.S. states, it is not only legitimate for Spain to proceed against those officials, but it would be legitimate for Spain to send armed agents into the United States to abduct those officials and bring them back to Spain to stand trial.


Posted by: cmdicely on April 14, 2009 at 2:04 PM | PERMALINK
As I read it, it doesn't give Spain any power to try former American administration officials on grounds of universal jurisdiction or anything like that.

You aren't reading it very well.

Further, you might also note that the U.S. Second Circuit Court of Appeals has held that, due to the Convention and the treatment of torture in other treaties, torturers are, under international law, hostis humani generis like slavers and pirates, in justifying a similar exercise of jurisdiction by the U.S. against agents of the Government of Paraguay charged with torturing a citizen of Paraguay. Filártiga v. Peña-Irala, 630 F.2d 876 (1980).

(The same status of torturers was confirmed as international law in the International Criminal Tribunal for the Former Yugoslavia's decision Prosecutor v. Furundžija (1998), which cited the previously-mentioned Second Circuit decision.)

Posted by: cmdicely on April 14, 2009 at 2:17 PM | PERMALINK

A comment above says, "It is embarrassing that another country should have to clean up after the US." Yes, but we deserve to be embarrassed. We have lost the moral authority to prosecute these crimes. If we did, and a defendant was acquitted, then the rest of the world would justifiably (whether correctly or not) assume that the case was rigged. We kidnapped and tortured mainly foreigners, so foreigners should try the culprits.

Posted by: Henry on April 14, 2009 at 2:42 PM | PERMALINK

I appreciate all the thoughtful comments above. I have a couple of additional thoughts.

1) I think we can all agree that the interpretation of the Geneva Convention that would give the Spanish Government the power to try former American officials for advice they gave the President of the United States while in office would infringe US sovereignty, power and independence. I think that would be unfortunate; you all apparently believe that such a surrender of sovereignty, power and independence would be good. I think it's important to be clear about the consequences of different interpretations and I don't think you disagree about that. It's especially important that our leaders (President Obama, AG Holder, Speaker Pelosi, Sec. Clinton) speak clearly to the American public about the consequences.

2) IMHO, if Spain is unhappy with how the US is implementing the Geneva Convention, it has a variety of diplomatic tools at its disposal to make its displeasure known. In addition, if any American violated Spanish criminal law by torturing a Spanish citizen, then Spain can prosecute that crime as well. As for the rest of it, if I were the President, I'd tell the Spanish Government to go pound salt and use whatever diplomatic, economic and other means were at hand to punish Spain if it perseveres with this course of action.

3) The Senate should press Dean Koh, the nominee to be the General Counsel of the State Department, very hard on these issues. I assume you all want to know as much as I do what he thinks about these issues in some detail - this could easily be the first big issue he faces and it's fair and relevant to pin him down on how he interprets Spain's and the United
States's respective rights under the Geneva Convention.

Posted by: DBL on April 14, 2009 at 5:29 PM | PERMALINK

I think we can all agree that the interpretation of the Geneva Convention that would give the Spanish Government the power to try former American officials for advice they gave the President of the United States while in office would infringe US sovereignty, power and independence.

Nope. Because we signed the treaty, idiot. It is the same thing as any US law.

As for the appeals to power and independence, screw that.

We are a nation of laws, not bedwetting pussies.

Posted by: TenguPhule on April 14, 2009 at 7:13 PM | PERMALINK




 

 

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