Spain May Reopen Criminal Investigation of Bush Lawyers Over Guantanamo

Two Spanish papers this morning are reporting that the criminal complaint (in spanish, here, pdf) against top Bush Administration lawyers involved in Guantanamo policy has been reopened for investigation. The lawyers are:

  • Jay S. Bybee, United States Court of Appeal for the Ninth Circuit
  • Douglas Feith, Senior Fellow, Hudson Institute
  • William J Haynes, Chief Corporate Counsel, Chevron Headquarters
  • John Yoo, UC Berkeley School of Law
  • Alberto R. Gonzales
  • David Addington
The action parallels a criminal probe into allegations of torture involving the American CIA that was opened this week in the United Kingdom.


The case was opened in the Spanish national security court, the Audencia Nacional. In July 2006, the Spanish Supreme Court overturned the conviction of a former Spanish citizen who had been held in Guantánamo, labeling the regime established in Guantánamo a “legal black hole.” The court forbade Spanish cooperation with U.S. authorities in connection with the Guantánamo facility. The current criminal case evolved out of an investigation into allegations, sustained by Spain’s Supreme Court, that the Spanish citizen had been tortured in Guantánamo.

The action was taken by Judge Baltasar Garzón, referred to as "Europe's counter-terrorism magistrate."

Garzón is best known for his prosecution of a criminal investigation against Chilean dictator Augusto Pinochet that resulted in the issuance of an arrest warrant for Pinochet while he was visiting England.

The action means that if these lawyers travel to Spain or to the 24 countries that participate in the European extraditions convention outside the U.S., they could be arrested. They could also be arrested in other countries, but that would require more extensive extradition proceedings.

Update: Rough translation from El Pais:

The judge, has reopened the case, saved since March 2008, and has been transferred to the prosecutor of the Audiencia Nacional to inquire about whether to admit the criminal complaint filed against the six lawyers who participated in the preparation, approval and implementation of the legal framework in Guantanamo.

This lawsuit was filed by the Association for the dignity of prisoners, reports the SER for the purpose of investigating a crime against the international community to this group of lawyers working for Undersecretary of Defense for the Attorney General or as advisers to George Bush.

AFP article here.

Spain operates under the principle of "universal jurisdiction," a doctrine that allows courts to reach beyond national borders in cases of torture, terrorism or war crimes.

Much more here.

The case was not formally accepted by the court yet, but Baltasar Garzon has ordered the prosecution to start a criminal probe against the six.

The Publico article is here and El Pais' article is here. The Publico article, translated, says:

The document [complaint], of almost 100 pages, constitutes an exhaustive chronicle of how the Administration of Bush assembled a new legal corpus that threw for the gunwale all a legalistic tradition of more than 200 years. The documents show that the advisors of Bush knew the international law and they violated it consciously, according to the plaintiffs.
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    Just the imagery (5.00 / 1) (#4)
    by KeysDan on Sat Mar 28, 2009 at 11:59:23 AM EST
    of these guys fleeing through the kitchen exits of most European hotels brings some satisfaction.

    Yes -- and on more than one continent (5.00 / 1) (#6)
    by Cream City on Sat Mar 28, 2009 at 12:07:33 PM EST
    I bet.  I can't find the list of the countries cooperating in European extraditions -- but the UK case would mean Australia and even Canada, too, wouldn't it?

    I like that these fools may have to cancel some vacation destinations.  And/or that they become less useful as employees who can't travel to a lot of other countries.


    political hacks (5.00 / 1) (#7)
    by diogenes on Sat Mar 28, 2009 at 12:12:17 PM EST
    If the Spanish government also pursued possible criminal charges against government officials in such lands of repression as Cuba, China, the Sudan, and North Korea, then maybe they'd be entitled to a little respect.

    Pinochet and Al Qaeda not good enough for you? (5.00 / 1) (#21)
    by Molly Bloom on Sun Mar 29, 2009 at 08:39:06 AM EST

     Baltasar Garzón, the crusading investigative judge who ordered the arrest of the former Chilean dictator Augusto Pinochet.

    Judge Garzón, however, has built an international reputation by bringing high-profile cases against human rights violators as well as international terrorist networks like Al Qaeda.

    But (4.75 / 4) (#8)
    by Cream City on Sat Mar 28, 2009 at 02:37:47 PM EST
    it's the fact that we're in such company, because of our political hacks.

    Last I Heard (2.00 / 1) (#9)
    by squeaky on Sat Mar 28, 2009 at 02:43:30 PM EST
    None of those countries have invaded other countries, occupied them, jailed and tortured a large percentage of the population etc.

    But I am sure that you know where the WMD's are.


    WTF? (5.00 / 1) (#10)
    by bocajeff on Sat Mar 28, 2009 at 03:19:58 PM EST
    Jailed and tortured a large percentage of their population? Iraq has roughly 25 million people. 3 percent would be 750,000 people. Is 3 percent a large percentage? Is 750,000 way too much of stretch.

    Hyperbole aside, and wishing the Bush Administration fry in hell aside, why lie?


    My math is wrong... (none / 0) (#11)
    by bocajeff on Sat Mar 28, 2009 at 03:20:42 PM EST
    75,000 people jailed or tortured.

    Lie? (none / 0) (#14)
    by squeaky on Sat Mar 28, 2009 at 03:42:33 PM EST
    Hardly, The occupation and havoc we have wreaked on Iraq constitutes mass torture, imo.

    Wow (none / 0) (#17)
    by bocajeff on Sat Mar 28, 2009 at 06:09:23 PM EST
    That's a heck of a loose dictionary you got there.

    Holy (1.00 / 0) (#12)
    by Wile ECoyote on Sat Mar 28, 2009 at 03:21:01 PM EST
    tibet, batman.

    If You Think (5.00 / 1) (#13)
    by squeaky on Sat Mar 28, 2009 at 03:41:13 PM EST
    That our invasion of Iraq is any way analogous to China's claims of sovereignty of Tibet you should read up on history/geography.

    A better analogy would be the american southwest.  

    BTW- does that mean that you support China's claim to Tibet? It would follow considering that you think Iraq is just like Tibet.  


    You posted (none / 0) (#44)
    by Wile ECoyote on Sun Mar 29, 2009 at 06:35:48 PM EST
    one of those countries have invaded other countries, occupied them, jailed and tortured a large percentage of the population etc.

    And I mentioned Tibet.  
    All apply.  What was the percentage tortured anyway?  Percentage.  Got a link?  I am sure there is a percentage somewhere.  What is the number?  


    I read that this court is the court (none / 0) (#16)
    by inclusiveheart on Sat Mar 28, 2009 at 05:04:58 PM EST
    that went after Chile's Pinochet - and apparently won.

    That was then... (5.00 / 1) (#19)
    by lentinel on Sat Mar 28, 2009 at 07:33:12 PM EST
    Eric Holder said the following in June, 2008

    "Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution. We owe the American people a reckoning."

    Uh huh.
    Obama's not interested.
    So we have to look to Spain.

    Spanish political blinders (5.00 / 1) (#20)
    by diogenes on Sun Mar 29, 2009 at 08:20:33 AM EST
    Goes after Pinochet and Bush officials but not Castro, North Korea, China, Sudan, or any of the countries that housed prisons where the US allegedly rendered prisoners.  
    What'll happen if someone indicts a Western leader for genocide/torture for supporting partial birth abortions under this idea that one country has legal authority to indict people for alleged crimes committed in another country.  I thought that that's what the International Court of Justice in the Hague was for.  

    Spanish political blinders (4.00 / 1) (#30)
    by yerioy on Sun Mar 29, 2009 at 10:55:24 AM EST
    I believe that some of the "disappeared" in Chile were Spanish citizens and part of the reason for going after Pinochet.  There is a PBS documentary called "The Judge and the General" explaining it better than I can.

    Blinders on Who? (none / 0) (#52)
    by squeaky on Mon Mar 30, 2009 at 01:34:00 PM EST
    Spain can claim jurisdiction in the case because five citizens or residents of Spain who were prisoners at Guantánamo Bay have said they were tortured there. The five had been indicted in Spain, but their cases were dismissed after the Spanish Supreme Court ruled that evidence obtained under torture was not admissible.



    So, we applaud Spain (2.00 / 0) (#23)
    by Bemused on Sun Mar 29, 2009 at 09:16:25 AM EST
      for announcing it will take legalistic criminal action against American politicians we despise concerning acts that neither occurred in Spain not targeted Spaniards.

      Will we applaud if the USA takes legalistic criminal actions against Palestinian (or just fill in the blank) politicians  concerning acts that neither occurred in the USA or targeted Americans?

      Will we applaud if Russia takes legalistic criminal action against Georgian politicians over acts that did not occure in Russia (or even disputed territory Russia claims) and did not target Russians?

      We could of course spend days filling in blanks above, before we even begin talking about the retaliations.

      The idea that individual nations should be allowed to claim jurisdiction to use their domestic court systems to punish things done anywhere they don't like seems like one of the poorer ones ever floated.

      Cheerleaders might also want to consider that announcing prosecutions and enforcing them are different things and that the ability to enforce is closely related with power.

      As i sdaid, this is unlikely to amount to anything except soem publicity, but it is a very dangerous idea and not infrequently really stupid solutions are worse than the problems-- even bad problems.


    Applaud? Well it would depend (3.50 / 2) (#24)
    by Molly Bloom on Sun Mar 29, 2009 at 09:35:49 AM EST
    on what action was taken.

    I gather you deeply regret the US's role in creating international law over the last century.

    You probably would have opposed this as well.

    The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated...

    This Tribunal, while it is novel and experimental, is not the product of abstract speculations nor is it created to vindicate legalistic theories... The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which. leave no home in the world untouched...

    Nuremberg (2.00 / 0) (#26)
    by Bemused on Sun Mar 29, 2009 at 10:33:06 AM EST
      while obviously dominated by the winners was an international action not undertaken in the domestic courts of the USA.

    not responsive to the real issue at hand. (3.50 / 2) (#36)
    by Molly Bloom on Sun Mar 29, 2009 at 12:02:33 PM EST
    I will make my own position clear. Torture is a violation of US law. It is also a violation of international law, which we are parties to. No president has the power to redefine torture by OLC legal memorandum. Logic should dictate that much to anyone. If torture can be redefined by mere OLC memo, what's next murder?

    We have a choice here.  It would be preferable to me that we wash our own dirty laundry. If you think it a bad idea for another nation to attempt to do so, then I would think you should join me in calling for a US investigation of the Bush administration and prosecution of officials involved, if a case can be made. I would also think that you would willing do so and not trash any US based investigaton and possible prosecution as partisan hackery.

    As I said,  torture  is a violation of international law, law which we helped create. IF we do not clean up after outselves, then there is no alternative.

    If you refuse either choice, then you are basically saying the King can do no wrong (Louis XIV "I am the state")  and do as we say, not as we do. That position rewrites our revolution, our constitution and our international position for at least the last century.

    So do you join me? Or do you repudiate your heritage (I am making the assumption, our democratic prinicples and ideals are your heritage. Feel free to correct me on that point)?


    fine. (2.00 / 0) (#37)
    by Bemused on Sun Mar 29, 2009 at 12:09:58 PM EST
     I join you in calling for our country to investigate  fully investigate and to prosecute if the investigation gathers evidence of crimes. i also am not opposed to peoperly conducte investigations by internatinal tribunals

      May I ask what i wrpte could conceivably led you to think I wouldn't?


    Well for starters (3.50 / 2) (#41)
    by Molly Bloom on Sun Mar 29, 2009 at 02:10:13 PM EST
    you already repudiated the principlesunderlying the Nuremburg war crime trials, certain US Statutes, and  certain US actions (e.g. Charles "Chuckie" Taylor prosecution).

    While non of those actions on your part preclude US investigation and prosecution, your principaled protest didn't reflect any concern that torture may have been authorized by the potential defendants and what should be done about it, if they had, other than your principaled position they not be prosecuted in foreign courts.

    I also note you didn't agree not to trash any US based investigaton and possible prosecution as partisan hackery.


    Get real (2.00 / 0) (#45)
    by Bemused on Mon Mar 30, 2009 at 06:57:41 AM EST
     I  "repudiated the principles underlying the Nuremburg war crime trials..."????????

    From what tortured reasoning do you pull that?

      I also fail to see how you could possibly find that torture does not concern me simply because I don't believe individual nations should exercise esxtra-territorial jurisdiction using their domestic courts. Attempting to spin that I felt it unnecesasary to state torture is a very bad thing in the discusion to my support for or tolerance of torture, is quite dishonest if you ask me.

      If I was discussing the jurisdictional and procedural issues in a rape/murder case, would you try to paint me as tolerant of rape and murder if I didn't  state rape and murder are bad things in a post stating the opinion that the trial should not occur in a jurisdiction unconnected in any way to the crime?

      Finally, I don't agree in advance (and neither should anyone else) not to criticize things that will occur in the future. If a U.S. investigation does not take place, I will criticize that. If an U.S. investigation strikes me as a whitewash, I will criticize that. And, if a U.S. investigation strikes me as nothing but partisan hackery, I will criticize that.

      Only, if the investigation strikes me as as thorough and properly conducted one will i praise it.

     Clear enough?


    You have no complaint (3.00 / 2) (#50)
    by Molly Bloom on Mon Mar 30, 2009 at 12:58:26 PM EST
    I gave you every opportunity to state your position on torture.

    I have yet to figure out what you think should be done, if a nation fails to act when torture/war crimes are committed within their territorial jurisdiction. You certainly have not made that clear.

    One of the principles from Nuremburg is when a nation fails to act, other nations could. You have made it quite clear you oppose that.


    no (none / 0) (#51)
    by Bemused on Mon Mar 30, 2009 at 01:33:08 PM EST
      I have made it clear that I do not believe a single nation acting unilaterally through its domestic courts should  assert extra-territorial jurisdiction over cases where neither the alleged offenders or alleged victims are citizens of that nation and the acts did not occur within the territorial jurisdiction of that nation.

      Obviously, you know that Nuremberg in no way stood for the proposition that should be allowed and are again being less than honest.

      Despite your being  willfully obtuse and dishonest, I will again answer your question.

       I believe that ONLY international tribunals should be permitted to undertake such prosecutions, and that if the USA or any other nation refuses to pursue investigations based good faith suspicion of violations of international law such as this that is reason for international tribunal action but not for unilateral action by another nation acting alone.



    Huh? (4.00 / 0) (#53)
    by squeaky on Mon Mar 30, 2009 at 01:36:14 PM EST
    Molly has in all her years here never been willfully obtuse of dishonest, although you, in your short stint at TL have demonstrated those qualities quite relentlessly.

    she has been obtuse and dishonest in this thread (none / 0) (#54)
    by Bemused on Mon Mar 30, 2009 at 01:38:02 PM EST
      If she hasn't before that's good, but it doesn't excuse it here.

    this is tthe subsection (2.00 / 0) (#28)
    by Bemused on Sun Mar 29, 2009 at 10:38:31 AM EST
     with which i have a problem:

    (b) Jurisdiction.-- There is jurisdiction over the activity prohibited in subsection (a) if--
    (1) the alleged offender is a national of the United States; or
    (2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender

    18 U.s.C. § 2340A (b)

      Read to allow us to apprehend people abroad for acts committed abroad and extradite (or less legally transport) them to the USA, i think this portion of the law should be eliminated.

    that is correct (2.00 / 0) (#31)
    by Bemused on Sun Mar 29, 2009 at 10:55:51 AM EST
     and i would think it would be obvious i think that way fro my previous cimment.

    no (2.00 / 0) (#33)
    by Bemused on Sun Mar 29, 2009 at 11:06:51 AM EST
     in my "ideal" world people like him would not exist. in the next closest to ideal they would not gain power.

      In a world that has some chance of actually existing anytime soo which I would prefer to this one, only international tribunals would be empowered to exercise such jurisdiction and those international jurisdictions would be less ad hoc in approach and follow uniform rules reached by a consensus of the majority of nation-states.


    what is your problem? (2.00 / 0) (#35)
    by Bemused on Sun Mar 29, 2009 at 11:27:03 AM EST
      You seem to be obsessed with me for some faintly disturbing reason.

      I have stated my opinion quite clearly (despitr the typos) and if you would stop ranting you would likely conclude our opinions are not that different except I am consistent in opposing it when it is done both by and to the United States.


    Yes (1.00 / 1) (#39)
    by squeaky on Sun Mar 29, 2009 at 01:38:19 PM EST
    Amazing how trollish some can be. I took offense to the comment as well. Obsessed, WTF? Coming from a commenter who has already been banned from BTD's threads and who routinely troll rates commenters he disagrees with, calling you obsessed is hilarious.

    Huzzah! (none / 0) (#1)
    by candideinnc on Sat Mar 28, 2009 at 11:22:41 AM EST
    And we creep forward to the day when international law trumps tyranny!  Next batter in the box, former Secretary of Defense Rummy, and then mop up with Cheney and Dumbya.

    if we can't clean up our own messes (none / 0) (#2)
    by of1000Kings on Sat Mar 28, 2009 at 11:38:01 AM EST
    I don't have a problem with another country doing it for us...

    can you imagine the RW pundits conversing about upper level Bush Administration officials being tried for crimes in another country...
    heck, it's liable to be war...


    We can, we just don't (5.00 / 1) (#3)
    by Inspector Gadget on Sat Mar 28, 2009 at 11:47:39 AM EST
    The hypocrisy and arrogance in our gov't shows when we neglect to take care of our own sins. The people in this country aren't the ones who took these things "off the table" but we suffer the consequences of their choices.

    more likely (none / 0) (#5)
    by Bemused on Sat Mar 28, 2009 at 12:06:19 PM EST
      Having scored whatever political points to be made nothing willcome of it.

      I do have a problem with using legalistic (and I use that word rather than legal intentionally)processes, especially of a foreign nation rather than of an international tribunal) for political purposes.

      It doesn't take much imagination to envision the eventual result if all countries began asserting such authority.

      As a side note, it should be noted the allegations against Bybee relate to actions when he was with a DOJ/OLC and not to actions taken as a judge.


    update (none / 0) (#55)
    by Bemused on Thu Apr 16, 2009 at 04:04:31 PM EST

    And, as predicted, nothing comes of it.


    Not everybody (none / 0) (#18)
    by lentinel on Sat Mar 28, 2009 at 07:17:24 PM EST
    just wants to pretend this criminal behavior didn't happen and "move forward".

    I'm not in favor (none / 0) (#27)
    by Bemused on Sun Mar 29, 2009 at 10:35:20 AM EST
     of the repeal of the statute prohibiting torture but i am very much against assertions of extr-territorial jurisdiction by U.S. courts.

    Rendition (revisited) (none / 0) (#42)
    by blogname on Sun Mar 29, 2009 at 02:40:37 PM EST
    Would "ordinary" rendition-supporting liberals and conservatives support Spain launching an abduction mission in the U.S. -- since it is clear that Obama will not cooperate with an extradition request? Irony Alert: Can Spain Abduct Bush-Era Officials and Prosecute Them for Violating International Law?

    Irony Galore (5.00 / 0) (#43)
    by squeaky on Sun Mar 29, 2009 at 02:54:00 PM EST
    And states secrets act can thwart prosecution from the kidnapping by Spanish covert agents, just like it did when we kidnapped Egyptian cleric Osama Moustafa Hassan Nasr from a Milan street.

    What is so ironical (none / 0) (#56)
    by Saul on Wed Apr 29, 2009 at 03:31:11 PM EST
    is that this Spanish judge was trying to prosecute these GITMO detainees when they came back to Spain.  However, as he went to prosecute them he found out that all the information they gave U.S was done after they were tortured.  He found out that they did not do it and therefore Garzon turned all his fury and efforts to those that were involved in allowing the torture on these Spaniards. Hence his investigation of the Bush 6