Atlantic Council

Spain’s Attorney General today rejected a judge’s decision to open an investigation against six Bush Administration officials. The AG’s recommendation was sought by a group of human rights lawyers and the judge hoping to bring cases against “The Bush Six” for their alleged sanctioning of torture.

Judge Baltasar Garzon, who requested the recommendation, has gained international exposure for his use of Spain’s universal justice doctrine, which, according to the Associated Press, “gives its courts jurisdiction beyond national borders in cases of torture, war crimes and other heinous offenses.” Garzon is famous for indicting ex-Chilean dictator Augusto Pinochet in 1998. In addition, The BBC reports that Spain has employed universal jurisdiction to investigate alleged crimes in Argentina, Tibet, El Salvador and Rwanda.

Now, Garzon wants to apply the same principle in cases against former U.S. Attorney General Alberto Gonzales, ex-Undersecretary of Defense Douglas Feith, Vice President Dick Cheney’s chief of staff, David Addington, Justice Department officials John Yoo and Jay S. Bybee, and Pentagon lawyer William Haynes. Garzon accepted and provisionally passed the 98 page complaint in late March. The complaint, which was filed by a group of human rights lawyers, was sparked by the fact that five Spanish citizens or residents held at Guantanamo claim to have been tortured there.

But Attorney General Candido Conde-Pumpido is apparently attempting to reign in this Spanish practice, arguing that any charges should be handled by a U.S. court and that Spain’s National Court should not be turned “into a plaything” used for political ends. He has also argued against charging anyone with torture who was not physically involved in its execution. As Spain’s top law enforcement official, Conde-Pumpido’s opinion matters.

Is an opinion enough to stop Garzon from moving ahead with a probe? Apparently not. Although the AP reports that it would be “highly unusual” for an investigative judge to proceed with a case without the support of National Court prosecutors, he or she is not bound by their decision.

Indeed, this has not halted Garzon in the past. Reuters reported that, “The attorney general's office had advised him not to try to extradite Pinochet, but that did not stop him going ahead and almost succeeding.” What the Judge must actually avoid to continue with his case are any legal objections and an attempt to replace him with another judge who is already investigating the entry of secret CIA flights to or from Guantanamo into Spanish territory.

What is the response of “The Bush Six” to this group of human rights lawyers that claims, according to AFP, “they "participated in elaborating and putting in place the legal framework of Guantanamo" that allowed torture to take place by adopting a very narrow definition of what interrogation techniques constituted torture”?

The individual response has been one of general silence. According to the AP report, only Feith has spoken, calling Spain’s claims of universal jurisdiction, “a national insult with harmful implications.”

The Manchester Guardian reports on the administration’s response:

The Bush administration repeatedly argued that the fact that it was acting against foreign nationals outside US borders made its actions legal. It maintained that foreign nationals held at Guantánamo had no constitutional rights, that the international treaty prohibiting cruel, inhuman and degrading treatment did not protect foreigners held abroad, and that foreigners rendered to torture in other countries were similarly unprotected.

To David Cole, author of the Guardian article, the whole situation holds a certain “poetic justice”: “Globalisation is often criticised for allowing the powerful to avoid legal obligations through outsourcing. But here globalization may work in the other direction, bringing international pressure to bear on the powerful to compel it do what it would rather not.”

Cole remains hopeful that this poetic justice will be carried out:

Judge Garzon's investigation will be run not by a diplomat or politician concerned with avoiding embarrassment and division, but by a judge bound by international and domestic law. As he showed in the Pinochet case, Garzon will do what the law obliges him to do.

And when it comes to torture, the law is clear. Under the international law principle of "universal jurisdiction," if the US does nothing to investigate torture by its own officials, the door is open to prosecution elsewhere.

Since Conde-Pumpido announced his rejection of the probe today, the pressure is on for Garzon. Moving ahead with the case would be a gutsy move for the Judge, but he is not historically lacking in the daring department.

What are the chances of President Obama initiating a criminal investigation at home should Garzon be unable or unwilling to proceed? According to Cole, chances are slim:

What's blocking a criminal investigation in the US is not evidence or law, but politics. An indictment of many of the former administration's cabinet officials seems almost as unthinkable as torture itself seemed before 9/11. Even in developed countries with an unbroken history of peaceful democratic transitions, holding former high-level government officials responsible can be extraordinarily difficult.

Andrew Sullivan of The Atlantic believes Obama is being strategic: “I think Obama knows what happened; and he knows that, in the end, America will have to face it. He will not defend it, but he will not be the prosecutor either. It's the long game he knows. And it's the long game that will bring these people to justice.”

There could, however, be interesting implications for U.S.-Spain relations should the case move forward. CNN explored this possibility:

Some analysts and bloggers have suggested in recent days that the case could damage relations between Spain's Socialist government and President Barack Obama's administration.

But a U.S. official, speaking on condition of anonymity, told CNN on Wednesday that a German court once had an investigation of then U.S. Defense Secretary Donald Rumsfeld, but that did not hurt U.S.-German bilateral relations.

What about U.S.-International Criminal Court relations? With the Obama administration attempting to warm the nation to the idea of supporting the ICC, it would be interesting to monitor the public’s response to a case held in Spanish courts against U.S. citizens.

Valerie Nichols is a Web Editor at the Atlantic Council. Photo Credit: AP Photo.