President Barack Obama has until now largely ignored calls to investigate or prosecute former Bush administration officials responsible for authorizing the torture of suspects in the “war on terror.” He has said he prefers “looking forward” to “looking backward”–even though former Vice President Cheney admits he authorized waterboarding, and Obama’s attorney general, Eric Holder, has testified that waterboarding is torture. But the pressure to launch an investigation increased dramatically on March 28 with news that a Spanish judge had begun a criminal inquiry into high-level Bush administration officials’ complicity in torture.
The investigation targets six lawyers responsible for devising the legal architecture that allowed torture to become official US policy: former Office of Legal Counsel lawyers John Yoo and Jay Bybee, who wrote the August 1, 2002, memorandum defining torture so narrowly that waterboarding and threats of death were deemed permissible; former White House lawyers Alberto Gonzales and David Addington, who headed the so-called War Council, argued that the Geneva Conventions were “quaint” and “obsolete” and requested the August torture memo; and Defense Department lawyers Douglas Feith and William Haynes, who helped sweep away the Geneva Conventions and authorize torture at Guantánamo.
The complaint that initiated the investigation alleges that these lawyers “participated actively and decisively in the creation, approval and execution of a judicial framework that allowed for the deprivation of fundamental rights of a large number of prisoners, the implementation of new interrogation techniques including torture, the legal cover for the treatment of those prisoners, the protection of the people who participated in illegal tortures and, above all, the establishment of impunity for all the government workers, military personnel, doctors and others who participated in the detention centre at Guantánamo.”
Why Spain? Two reasons. First, Spanish law, like US law, recognizes “universal jurisdiction” for crimes of torture, meaning that torturers can be prosecuted anywhere, regardless of where they committed their crimes. Second, some of those held at Guantánamo were Spanish citizens.
The judge overseeing the investigation is Baltasar Garzón, who made international news in 1998 when he indicted former Chilean President Augusto Pinochet for, among other crimes, the torture of Chileans when he was in power. The indictment, also issued under the principle of universal jurisdiction, ultimately sparked criminal proceedings in Chile against Pinochet.
Given how much is known about the Bush lawyers’ role in authorizing and covering up torture, one of the few ways to respond to the prosecution in Spain would be for the United States to launch its own investigation. The principle of universal jurisdiction recognizes that if a country is making responsible moves to pursue wrongdoers, other nations should not step in. But as long as President Obama plans to “look forward,” Judge Garzón is likely to move forward with his case.
Spain is not the only country conducting a criminal investigation. On March 26 Britain’s attorney general, Patricia Scotland, announced that she was launching a criminal investigation into allegations that British security officials were complicit in the torture of Binyam Mohamed, a British resident captured by US officials in Pakistan and rendered to Morocco and Afghanistan before being taken to Guantánamo. MI5 officials provided information to the Moroccans while he was being interrogated under torture. If such allegations of complicity are sufficient to require a criminal investigation, surely the role of US lawyers in authorizing the direct application of torture merits investigation.
The European investigations are premised on a simple proposition: torture is never justified, and any complicity in it therefore warrants inquiry and, where appropriate, punishment. If we don’t acknowledge that the rule of law demands accountability, others will.
David Cole (email@example.com) is The Nation‘s legal affairs correspondent.