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.