Any day now, the Justice Department’s Office of Professional Responsibility (OPR) is expected to release its long-awaited report on the lawyers who crafted the Bush administration’s unprecedented legal architecture for torture. As with much else in Washington, the report’s conclusions have already been leaked. In January Michael Isikoff and Daniel Klaidman wrote in Newsweek that while an earlier draft had recommended that state bars consider formal discipline of Jay Bybee and John Yoo, the principal authors of the initial “torture memo,” the report has been watered down to find only the exercise of “poor judgment” and does not recommend referral for discipline. Torture has been called many things before–chief among them a “crime against humanity”–but “poor judgment”? I bet they will also find that “mistakes were made.”
Meanwhile, across the ocean, a Spanish judge opened a formal criminal investigation of Bybee and Yoo in January for their role in authorizing torture tactics at the detention center at Guantánamo Bay. The judge, Baltasar Garzón, indicted Gen. Augusto Pinochet in 1998 for, among other things, authorizing torture while serving as Chile’s self-appointed president, so he’s shown himself unafraid to call torture something more than “poor judgment.” In March 2009 Garzón took up a complaint filed against the lawyers; he has completed the initial inquiry and determined that a full formal criminal investigation is warranted.
Back at the scene of the crime, the most the Justice Department appears to be willing to do is slap Bybee’s and Yoo’s wrists. No criminal investigation has ever been instituted–not by attorneys general John Ashcroft, Alberto Gonzales or Michael Mukasey, all of whom are personally implicated in the department’s authorization of coercive interrogation methods; nor by Eric Holder, who has opened only a limited criminal investigation of CIA interrogators who allegedly exceeded even the brutality authorized by the Justice Department lawyers but not of the lawyers who sanctioned the brutality in the first place.
It may seem odd that Spain, and not the United States, is undertaking a criminal investigation of US government officials for torture. But that’s exactly what the Convention Against Torture contemplated. Countries all too frequently seek to cover up their own acts of torture, so the convention obligates signatory states to investigate credible allegations of torture, and it also recognizes that such crimes can be prosecuted anywhere. As President Reagan explained when the United States signed on to the Convention Against Torture in 1988: “The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called ‘universal jurisdiction.’ Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.”
In his decision authorizing the Spanish case to go forward, Judge Garzón emphasized that Spanish citizens held at Guantánamo had been victims of the policy. (In fact, Garzón had prosecuted one of those Spanish citizens for involvement in terrorism, but his conviction had been reversed on appeal because of the abuse the man suffered at Guantánamo.) Judge Garzón also stressed that US authorities had not instituted any criminal investigation themselves and in fact had not even responded to his formal request for information to Attorney General Holder in May 2009. If the United States took its legal obligations seriously, Garzón’s opinion implied, there would be no need for a prosecution overseas. But treating the matter solely as an ethics issue, not a potential crime, and labeling it only “poor judgment,” hardly satisfies US international obligations.
If and when the OPR report sees the light of day, the Justice Department should at a minimum be pressed to release the early version as well and to detail the process by which its conclusions were watered down. But more important, that it takes a Spanish judge to treat torture as the crime against humanity that it is while the Justice Department apparently considers it only an instance of “poor judgment” demonstrates the necessity for an inquiry independent of the very department implicated in these potential crimes. Now more than ever it is time for a blue-ribbon, bipartisan independent commission, much like the 9/11 Commission, with full subpoena power. We should not leave accountability for our own possible crimes to the Spanish.