Nancy Goldstein | The Nation

Nancy Goldstein

Nancy Goldstein

Will Bush's Torture Memo Team Face Justice in Spain?

There may yet be justice for the victims of the post-9/11 US torture program. Just not in the United States.

Here, our previous president is enjoying terrific sales for a memoir where he boasts about having authorized waterboarding. The current administration's commitment to "moving past" the illegalities incurred on its predecessor's watch is so hardcore that the Department of Justice decided late last year against prosecuting anyone from the CIA for destroying ninety-two videotapes that showed the torture of prisoners detained as suspected terrorists. Which leaves Attorney General Eric Holder more time to subpoena Twitter records and figure out how to criminalize Julian Assange and WikiLeaks for promoting government transparency.

But perhaps there will be justice in Spain. This past Friday, the Center for Constitutional Rights filed papers urging Judge Eloy Velasco to do what the United States will not: prosecute the "Bush Six," the group of senior Bush-era government lawyers led by then–Attorney General Alberto Gonzalez, for violating international law by creating a legal framework that aided and abetted the torture of suspected terrorists. (Full disclosure: I've done consulting work for CCR.)

Specifically, the January 5 filing addresses one of the primary obstacles facing this case: the legal difficulty of bringing charges against government lawyers. Arguably, they were simply "doing their job"—advising their boss, the president, in a legal capacity. In providing Velasco an appropriate legal framework for pursuing the Bush Six, CCR cites the last time this kind of prosecution was brought—during the Nuremberg trials, when Nazi government lawyers who provided cover for the Third Reich's war crimes were found guilty for their complicity.

The comparison is apt. Now as then, the filing argues, "the defendants must be held to account not only because it was a foreseeable consequence that the legal positions taken in their various memoranda would lead to torture and other crimes; but also because enabling these crimes was their very purpose in conspiring to write these opinions."

In short, the Bush Six, like their Nazi counterparts, performed to order for an administration that wanted legal cover to do whatever it wanted with groups it had already deemed non-human—in this case the "enemy combatants" stripped of their personhood and their rights at Guantánamo and other US-run overseas locations. Like the Nazi government's lawyers, the Bush Six consciously distorted the law, knowing that the opinions they wrote justifying these actions would enable torture and other crimes.

Ultimately, though, the greatest obstacle to Spain's prosecution may be the United States itself. We know from leaked US Embassy cables like this one, dated April 1, 2009, that the same administration that refuses to prosecute torture at home tried to derail Bush Six only days after it opened in response to a criminal complaint filed by a Spanish NGO in March of 2009. US officials fret that "the fact that this complaint targets former administration legal officials may reflect a 'stepping-stone' strategy designed to pave the way for complaints against even more senior officials." In one of Cablegate's more shocking moments, they ask Spain's National Court Chief Prosecutor Javier Zaragoza for reassurance, and he provides it, telling them that while "in all likelihood he would have no option but to open a case," he does not "envision indictments or arrest warrants in the near future."

Sixty-plus years ago, American judges trekked to Nuremberg for the purpose of passing rightful judgment on a European government that had defended its criminal policies to the end. Now the time has come for the arc of the moral universe to bend the other way across the Atlantic.

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Every Picture Tells a Story, Don't It? (Guantánamo Turns 9)

Today, the Miami Herald debuted a remarkable three-minute video called Guantánamo Iconography:

Narrated by staff reporter Carol Rosenberg, it features photos from those very first hours, nine years ago today, when the Bush administration transferred the first twenty detainees to Camp X-Ray at Guantánamo Bay, Cuba, after being assured by its Department of Justice that the location placed detainees outside of US legal jurisdiction.

It’s chilling, still, watching orange-clad, goggled, gagged, dehumanized figures forced to kneel en masse, turned away from one another, with their hands cuffed in front of them—especially while the Navy combat photographer reminisces on the soundtrack. He didn't know that his photos would be distributed until he saw them "on CNN or something" (they were marked "for official use only"). At the same time he seems to see, and yet not see, the evidence of human rights abuse, even torture, right in his viewfinder.

On the one hand, the photographer, looking at his own images, acknowledges knowing that "people just simply weren’t kept like that." Yet he believes what the guards tell him—what they probably believe themselves. The gloves are to protect the prisoners' hands from the cold; ditto for the hats. And about those blacked-out goggles and the loose gags? They were so the prisoners "couldn’t communicate and plan to attack a guard. It made sense to me. I didn’t even see it when I shot it.… I really didn’t think about it when I went back through it and edited at the end of the day. Those photos seemed decently exposed, the composition was good, so we sent them out."

And that is when the photos began to be truly seen. The Pentagon, Rosenberg explains in voiceover, distributed the photos and "the reaction was huge, fierce. People thought they looked like torture." Here the video’s images turn to protestors dressed as detainees and carrying signs that say "Shut down Guantánamo" and "Say no to torture," or posing hooded in front of gates topped with chicken wire, plus a front page of the London Daily Mirror that reads, "What in hell are you doing in OUR name, Mr. Blair?"

To this day the photographer, like so many government and military officials who were complicit in Guantánamo—indeed, like many Americans still—doesn't get why people reacted so strongly to the pictures. There's no acknowledgment, indeed there's no cognizance, even nine years, 775 men, six deaths and only five convictions later, that there is something terribly wrong—one might say "inhuman," or "unconstitutional"—about Camp X-Ray. About people being dragged out of their countries (many sold by their enemies to the US for bounty), then drugged, gagged, bound, blindfolded, stripped of their rights, tortured, maimed and kept for years after it's clear that they pose no threat because no country will take them. Or kept because the "confessions" tortured out of them aren't admissible as evidence in any trial, yet our public servants, led by our president and Congress, can find no way or will to let them go.

So go to the site. Watch it because this is one of the great atrocities of our time, and it's not over. Watch it and feel wonderment at how long it's been since you’ve seen these photos, if at all. The military quickly learned about the power of the unmediated image from the outcry these photographs provoked, and never distributed them publicly with so free a hand again.

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