Posts Tagged ‘criminal proceedings’

Spain investigates what America should

April 7, 2009

By Marjorie Cohn | , April 6, 2009

A Spanish court has initiated criminal proceedings against six former officials of the Bush administration. John Yoo, Jay Bybee, David Addington, Alberto Gonzales, William Haynes and Douglas Feith may face charges in Spain for authorizing torture at Guantánamo Bay.

If arrest warrants are issued, Spain and any of the other 24 countries that are parties to European extradition conventions could arrest these six men when they travel abroad.

Does Spain have the authority to prosecute Americans for crimes that didn’t take place on Spanish soil?

The answer is yes. It’s called “universal jurisdiction.” Universal jurisdiction is a well-established theory that countries, including the United States, have used for many years to investigate and prosecute foreign nationals for crimes that shock the conscience of the global community. It provides a critical legal tool to hold accountable those who commit crimes against the law of nations, including war crimes and crimes against humanity. Without universal jurisdiction, many of the most notorious criminals would go free. Countries that have used this as a basis to prosecute the most serious of crimes should be commended for their courage. They help to create a just world in which we all seek to live.

Israel used universal jurisdiction to prosecute, convict and execute Adolph Eichmann for his crimes during the Holocaust, even they had no direct relationship with Israel.

A federal court in Miami recently convicted Chuckie Taylor, son of the former Liberian president, of torture that occurred in Liberia. A U.S. court sentenced Taylor to 97 years in prison in January.

Universal jurisdiction complements, but doesn’t supersede, national prosecutions. So if the United States were investigating the Bush officials, other countries would refrain from doing so.

When the United States ratified the Convention Against Torture, it promised to extradite or prosecute those who commit, or are complicit in, the commission of torture.

President Obama, when asked whether he favored criminal investigations of Bush officials, replied, “My view is also that nobody’s above the law and, if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen.”

“But,” he added, “generally speaking, I’m more interested in looking forward than I am in looking backward.” Preoccupied with the economy and two wars, Obama reportedly wants to wait before considering prosecutions that would invariably anger the GOP.

Evidence that Bush officials set a policy that led to the torture of prisoners at Guantánamo continues to emerge.

According to ABC News, Gonzales met with other officials in the White House and authorized torture, including waterboarding.

The Office of Professional Responsibility, which reports to the U.S. attorney general, drafted a report that excoriates Yoo and Bybee for writing the infamous torture memos. Haynes, Addington and Feith participated in decisions that led to torture. The release of additional graphic torture memos by the U.S. Department of Justice is imminent.

It is the responsibility of the United States to investigate allegations of torture. Almost two-thirds of respondents to a USA Today/Gallup Poll favor investigations of the Bush team for torture and warrantless wiretapping. Nearly four in 10 support criminal investigations.

Former Navy General Counsel Alberto Mora told Congress, “There are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantánamo.” Providing impunity to those who ordered the torture will be the third recruiting tool.

If the United States refuses to investigate now, it will be more likely that some future administration will repeat this scenario. The use of torture should be purged from our system, much like we eradicated slavery.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and President of the National Lawyers Guild. She is the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law and co-author of Rules of Disengagement: The Politics and Honor of Military Dissent (with Kathleen Gilberd). Her articles are archived at http://www.marjoriecohn.com (The views expressed in this article are solely those of the writer; she is not acting on behalf of the National Lawyers Guild or Thomas Jefferson School of Law)

Spanish judge accuses six top Bush officials of torture

March 29, 2009

Legal moves may force Obama’s government into starting a new inquiry into abuses at Guantánamo Bay and Abu Ghraib

Criminal proceedings have begun in Spain against six senior officials in the Bush administration for the use of torture against detainees in Guantánamo Bay. Baltasar Garzón, the counter-terrorism judge whose prosecution of General Augusto Pinochet led to his arrest in Britain in 1998, has referred the case to the chief prosecutor before deciding whether to proceed.

The case is bound to threaten Spain’s relations with the new administration in Washington, but Gonzalo Boyé, one of the four lawyers who wrote the lawsuit, said the prosecutor would have little choice under Spanish law but to approve the prosecution.

“The only route of escape the prosecutor might have is to ask whether there is ongoing process in the US against these people,” Boyé told the Observer. “This case will go ahead. It will be against the law not to go ahead.”

The officials named in the case include the most senior legal minds in the Bush administration. They are: Alberto Gonzales, a former White House counsel and attorney general; David Addington, former vice-president Dick Cheney’s chief of staff; Douglas Feith, who was under-secretary of defence; William Haynes, formerly the Pentagon’s general counsel; and John Yoo and Jay Bybee, who were both senior justice department legal advisers.

Court documents say that, without their legal advice in a series of internal administration memos, “it would have been impossible to structure a legal framework that supported what happened [in Guantánamo]”.

Boyé predicted that Garzón would issue subpoenas in the next two weeks, summoning the six former officials to present evidence: “If I were them, I would search for a good lawyer.”

If Garzón decided to go further and issued arrest warrants against the six, it would mean they would risk detention and extradition if they travelled outside the US. It would also present President Barack Obama with a serious dilemma. He would have either to open proceedings against the accused or tackle an extradition request from Spain.

Obama administration officials have confirmed that they believe torture was committed by American interrogators. The president has not ruled out a criminal inquiry, but has signalled he is reluctant to do so for political reasons.

“Obviously we’re going to be looking at past practices, and I don’t believe that anybody is above the law,” Obama said in January. “But my orientation’s going to be to move forward.”

Philippe Sands, whose book Torture Team first made the case against the Bush lawyers and which Boyé said was instrumental in formulating the Spanish case, said yesterday: “What this does is force the Obama administration to come to terms with the fact that torture has happened and to decide, sooner rather than later, whether it is going to criminally investigate. If it decides not to investigate, then inevitably the Garzón investigation, and no doubt many others, will be given the green light.”

Germany’s federal prosecutor was asked in November 2006 to pursue a case against Donald Rumsfeld, the former defence secretary, Gonzales and other officials for abuses committed in Guantánamo Bay and Abu Ghraib prison in Iraq. But the prosecutor declined on the grounds that the issue should be investigated in the US.

Legal observers say the Spanish lawsuit has a better chance of ending in charges. The high court, on which Garzón sits, has more leeway than the German prosecutor to seek “universal jurisdiction”.

The lawsuit also points to a direct link with Spain, as six Spaniards were held at Guantánamo and are argued to have suffered directly from the Bush administration’s departure from international law. Unlike the German lawsuit, the Spanish case is aimed at second-tier figures, advisers to Bush, Cheney and Rumsfeld, with the aim of being less politically explosive.

The lawsuit claimed the six former aides “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”.

“All the accused are members of what they themselves called the ‘war council’,” court documents allege. “This group met almost weekly either in Gonzales’s or Haynes’s offices.”

In a now notorious legal opinion signed in August 2002, Yoo and Bybee argued that torture occurred only when pain was inflicted “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”.

Another key document cited in the Spanish case is a November 2002 “action memo” written by Haynes, in which he recommends that Rumsfeld give “blanket approval” to 15 forms of aggressive interrogation, including stress positions, isolation, hooding, 20-hour interrogations and nudity. Rumsfeld approved the document.

The 1984 UN Convention against Torture, signed and ratified by the US, requires states to investigate allegations of torture committed on their territory or by their nationals, or extradite them to stand trial elsewhere.

Last week, Britain’s attorney general, Lady Scotland, launched a criminal investigation into MI5 complicity in the torture of Binyam Mohamed, a British resident held in Guantánamo.

The Obama administration has so far avoided taking similar steps. But the possibility of US prosecutions was brought closer by a report by the Senate armed services committee at the end of last year, which found: “The abuse of detainees in US custody cannot simply be attributed to the actions of ‘a few bad apples’ acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorised their use against detainees.”

None of the six former officials could be reached for comment yesterday. Meanwhile, Vijay Padmanabhan, a former state department lawyer, said the creation of the Guantánamo Bay detention camp was “one of the worst over-reactions of the Bush administration”.

Holding Bush Accountable

January 17, 2009

by Elizabeth Holtzman | The Nation, January 15, 2009

President Obama, on his first day in office, can make a number of changes that will mark a clean break with the Bush presidency. He can, and should, issue an executive order revoking any prior order that permits detainee mistreatment by any government agency. He should begin the process of closing Guantánamo, and he should submit to Congress a bill to end the use of military commissions, at least as presently constituted. Over the coming months he can pursue other reforms to restore respect for the Constitution, such as revising the Patriot Act, abolishing secret prisons and “extraordinary rendition,” and ending practices, like signing statements, that seek to undo laws.

While these steps are all crucial, however, it is not enough merely to cease the abuses of power and apparent criminality that marked the highest levels of George W. Bush’s administration. We cannot simply shrug off the constitutional and criminal misbehavior of the administration, treat it as an aberration and hope it won’t happen again. The misbehavior was not an aberration–aspects of it, particularly the idea that the president is above the law, were present in Watergate and in the Iran/Contra scandal. To fully restore the rule of law and prevent any repetition of Bush’s misconduct, the abuses of his administration must be directly confronted. As Indiana University law professor Dawn Johnsen–recently tapped by Obama to head his Office of Legal Counsel–wrote in Slate last March, “We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation’s past transgressions and reject Bush’s corruption of our American ideals.”

What we need to do is conceptually simple. We need to launch investigations to get at the central unanswered questions of Bush’s abuse of power, commence criminal proceedings and undertake institutional, statutory and constitutional reforms. Perhaps all these things don’t need to be done at once, but over time–not too much time–they must take place. Otherwise, we establish a doctrine of presidential impunity, which has no place in a country that cherishes the rule of law or considers itself a democracy. Bush’s claim that the president enjoys virtually unlimited power as commander in chief at a time of war–which Vice President Dick Cheney defiantly reasserted just last month–brought us perilously close to military dictatorship.

As the former district attorney in Brooklyn, New York, I know the price society pays for a doctrine of impunity. Failure to prosecute trivializes and encourages the crimes. The same holds true of political abuses–failure to hold violators accountable condones the abuse and entrenches its acceptability, creating a climate in which it is likely to be repeated. The doctrine of impunity suggests, too, that there is a dual system of justice–one for the powerful and one for ordinary Americans. Because the concept of equal justice under the law is the foundation of democracy, impunity for high-level officials who abuse power and commit crimes erodes our democracy.

An impeachment proceeding against President Bush would have been the proper forum to expose the full scope of his abuses and to impose punishment. That obviously didn’t happen, but investigations and prosecutions can still provide the vast civics lesson that an impeachment process would have given our nation.

There is another important reason for not “moving on.” On January 20, Barack Obama will take an oath of office to uphold the Constitution, which requires the president to “take care that the laws be faithfully executed.” Much as President Obama might like to avoid controversy arising from investigations and prosecutions of high-level Bush administration officials, he cannot let them get away with breaking the law without violating his oath. His obligation to pursue justice in these cases is all the more serious given his acknowledgment that waterboarding is torture–which is a federal crime–and the vice president’s recent admission of his involvement in and approval of “enhanced” interrogation techniques.

Moreover, under the Geneva Conventions and the Convention Against Torture, our government is obliged to bring to justice those who  have violated the conventions. Although Bush smugly ignored his constitutional duty to enforce treaty obligations and laws that punish detainee mistreatment, Obama cannot follow the same lawless path.

Continued >>


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