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Ya-ta Boy
Joined: 16 Jan 2003
Location: Established in 1994
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 Posted: Tue Mar 31, 2009 2:13 pm Post subject: Will the Spanish Prosecute US Officials for Torture? |
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Chile's Pinochet. Argentina's Scilingo. Guatemala's Rios Montt. To the roster of international figures whom Spanish investigative judge Baltasar Garz�n has sought to bring to justice, the name of Gonzales may soon be added. As in: Alberto Gonzales, former U.S. attorney general and one of the legal minds behind the Bush administration's justification for the use of torture at Guant�namo.
On March 17, a group of lawyers representing the Association for the Dignity of Prisoners, a Spanish human rights group, filed a complaint in Spain's National Court against Gonzales and five other former officials, including Undersecretary of Defense Douglas Feith and the Justice Department's John Yoo, for violating international law by creating a legal framework that permitted the torture of suspect terrorists. On March 29, the complaint became public after Garz�n, who had been assigned the case, sent it to the prosecutor's office for review, a step seen by many familiar with the court as a sign that the judge will soon agree to investigate the case...
No doubt there's a bit of strategy in aiming at Yoo and Feith (the complaint also brings charges against William Haynes, former general counsel for the Department of Defense; Jay Bybee, of the Office of Legal Counsel at the Justice Department and David Addington, Cheney's chief of staff). "Politically, going after lower-level officials is a lot more palatable than going against a former President and Vice President," says international law professor Robert Goldman, director of the War Crimes Research Office at American University...
But direct evidence or no, can the case have anything more than symbolic impact? "That's the toughest question," admits Bernabeu. "It's hard to believe we would see them face justice in a Spanish courtroom."
Will a Spanish Judge Bring Bush-Era Figures to Justice?
http://www.time.com/time/world/article/0,8599,1888572,00.html?xid=rss-world
This one is going to be an interesting case, if it indeed goes forward. Certainly the pressure will mount for investigations/prosecutions in US courts by people who feel the rule of law has been infringed.
I suppose one of the arguments those who oppose the move will use will be 'It's just symbolism' and they are right except for the word 'just'. Symbolism is very powerful.
Maybe Congress can make a preemptive strike and start its own investigation. |
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harlowethrombey
Joined: 17 Mar 2009
Location: Seoul
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| Posted: Tue Mar 31, 2009 4:46 pm Post subject: |
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Congress doesnt want to because so many of them were willing third parties to the torture.
But I sure hope Spain continues with its investigation. And if the Obama Whitehouse tries to kill it he should catch hell for it, too. |
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Fox
Joined: 04 Mar 2009
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| Posted: Tue Mar 31, 2009 5:11 pm Post subject: Re: Will the Spanish Prosecute US Officials for Torture? |
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| Ya-ta Boy wrote: |
| But direct evidence or no, can the case have anything more than symbolic impact? "That's the toughest question," admits Bernabeu. |
How is that a tough question at all? It has a very easy, obvious answer: of course it would not be anything more than symbolic. It's not like the US is going to just hand these men over for justice, regardless of what a Spanish court rules.
That doesn't make it a bad idea, though. |
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Ya-ta Boy
Joined: 16 Jan 2003
Location: Established in 1994
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| Posted: Tue Mar 31, 2009 7:12 pm Post subject: |
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| Quote: |
| How is that a tough question at all? |
I took that to mean 'Would Spanish action be enough to pressure US courts (or Congress) to act?' |
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Fox
Joined: 04 Mar 2009
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| Posted: Wed Apr 01, 2009 4:42 pm Post subject: |
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| Ya-ta Boy wrote: |
| Quote: |
| How is that a tough question at all? |
I took that to mean 'Would Spanish action be enough to pressure US courts (or Congress) to act?' |
Ah.
No, it won't. Our government has too vested an interest in not investigating itself except in cases of obvious, gross abuse or corruption. That goes for pretty much whoever is in power.
I don't think anything the Spanish could do could possibly provoke the massive public outcry required to get the US government involved. |
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megandadam
Joined: 28 Dec 2008
Location: toronto, canada
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| Posted: Thu Apr 02, 2009 12:56 am Post subject: |
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you will never see the u.s. agree to anything of the sort, no ICC, no warcrimes for americans - wouldn't kissinger or mcnamara etc etc etc be on that list? could you imagine americans in the gov't actually being tried in a foreign court? even a UN-sanctioned court (that they most likely bear the brunt of funding for?)
what about the russians? israel? would never ever never happen. (although, hasn't general sharon been indicted by the hague?)
the previous poster is right. if perchance some of these guys go to spain then maybe, but rest assured there would be a shitstorm of epic proportions if it happened. do americans still call french fries freedom fries? lol. |
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Rteacher
Joined: 23 May 2005
Location: Western MA, USA
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Ya-ta Boy
Joined: 16 Jan 2003
Location: Established in 1994
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| Posted: Thu Apr 02, 2009 2:42 am Post subject: |
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| Quote: |
| I don't think anything the Spanish could do could possibly provoke the massive public outcry required to get the US government involved. |
You may be right. On the other hand, I can imagine a scenario where some irrefutable piece of evidence surfaces during a Spanish trial that would be so damning that Obama would have to respond with a directive to the DoJ to start an investigation. I say that because I believe one of our national characteristics is to be moralistic. Bush isn't the only American to think in terms of right and wrong and judging. As I said, I'm not predicting this, but I can imagine it. |
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Gopher
Joined: 04 Jun 2005
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| Posted: Thu Apr 02, 2009 7:27 am Post subject: |
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First, the allegations are not sustainable, and likely politically-driven and hence insubstantial outside the leftists' rhetorical, fantasy world. The W. Bush-A. Pinochet comparison, moreover, although gratifying to leftists, simply is not apt. I also think B. Garzon likes the headlines.
Second, does anyone here actually believe that the B. Obama administration, with eyes for a second term, like every other administration, but also with the same concern for preserving the presidency's powers as every other administration, will stand back and permit foreign judges on quixotic missions to judge American foreign policy and high-ranking American foreign-policy officials in foreign courts? |
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Kuros
Joined: 27 Apr 2004
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| Posted: Thu Apr 02, 2009 8:57 am Post subject: |
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| Gopher wrote: |
Second, does anyone here actually believe that the B. Obama administration, with eyes for a second term, like every other administration, but also with the same concern for preserving the presidency's powers as every other administration, will stand back and permit foreign judges on quixotic missions to judge American foreign policy and high-ranking American foreign-policy officials in foreign courts? |
No.
Neither will he drop marijuana down to Schedule 3 or 4.
Neither will he withdraw from Iraq.
Neither will he accomplish significant entitlement reform.
Neither will I vote for him in 2012. |
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NAVFC
Joined: 10 May 2006
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| Posted: Fri Apr 03, 2009 2:30 am Post subject: |
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| Kuros wrote: |
| Gopher wrote: |
Second, does anyone here actually believe that the B. Obama administration, with eyes for a second term, like every other administration, but also with the same concern for preserving the presidency's powers as every other administration, will stand back and permit foreign judges on quixotic missions to judge American foreign policy and high-ranking American foreign-policy officials in foreign courts? |
No.
Neither will he drop marijuana down to Schedule 3 or 4.
Neither will he withdraw from Iraq.
Neither will he accomplish significant entitlement reform.
Neither will I vote for him in 2012. |
Yes he will withdraw from Iraq.
But as far as the rest of this thread, the title, no.
Even if they want to they wont. Just look at another case:
The leader of Sudan has a warrant out for his arrest, and since the warrants issue he has travelled abroad 5 times.
No one is arresting him and no one will. The international court system in itself has no teeth unless military force is brought to bare. |
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NAVFC
Joined: 10 May 2006
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| Posted: Fri Apr 03, 2009 2:33 am Post subject: |
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| Ya-ta Boy wrote: |
| Quote: |
| I don't think anything the Spanish could do could possibly provoke the massive public outcry required to get the US government involved. |
You may be right. On the other hand, I can imagine a scenario where some irrefutable piece of evidence surfaces during a Spanish trial that would be so damning that Obama would have to respond with a directive to the DoJ to start an investigation. I say that because I believe one of our national characteristics is to be moralistic. Bush isn't the only American to think in terms of right and wrong and judging. As I said, I'm not predicting this, but I can imagine it. |
Yata, they could find a diary that Bush wrote that said:
"Dear diary! I have them all fooled! WMD in Iraq? hahhaa... soon well be flowing in black gold, texas tea..CRUDE BABY! then after we get out of office, me and cheney will be rich"
and nothing would happen other then people getting mad. |
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ManintheMiddle
Joined: 20 Oct 2008
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| Posted: Fri Apr 03, 2009 2:58 am Post subject: |
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This Spanish nutbag is the same guy who was convicted of aiding and abetting terrorists, so consider the source.
The previous Spanish administration would not have done this, just as it would not have pulled troops out of Iraq. But now the Socialists are in control and the country is cowed because of the Madrid bombings. (It doesn't take much to cow most Western Europeans these days).
But I sure hope Spain continues with its investigation. And if the Obama Whitehouse tries to kill it he should catch hell for it, too.
Harlowethrombey bellyached:
| Quote: |
| But I sure hope Spain continues with its investigation. And if the Obama Whitehouse tries to kill it he should catch hell for it, too. |
While Obama might not overtly intervene to squelch any such measure you can bet the two marbles you still have rolling around upstairs that he's not going to facilitate it, so get your Leftwing media machine primed up. |
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ChopChaeJoe
Joined: 05 Mar 2006
Location: Seoul
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| Posted: Fri Apr 03, 2009 3:24 am Post subject: |
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| I think Camus wrote something about it not being the crime but the punishment that matters. Spain couldn't possibly have as much evidence as the U.S. government. But the U.S. won't prosecute, so we should probably just try to stop fixing blame and start figuring out how to fix the misstakes. |
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Pluto
Joined: 19 Dec 2006
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| Posted: Fri Apr 03, 2009 11:32 am Post subject: |
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Douglas Feith defends himself in the Wall Street Journal:
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Spain Has No Right to Try U.S. Officials
What next? Prosecutions for bad advice on global warming?
A lawyer in Spain -- who did his legal studies while serving over seven years in prison for kidnapping and terrorism -- has engineered a complaint accusing the U.S. government of systematically torturing war-on-terrorism detainees. He filed this complaint with Baltasar Garzon, an activist magistrate famous for championing the "universal jurisdiction" of Spanish courts. That magistrate is now asking a Spanish prosecutor to bring criminal charges on this matter against former U.S. Attorney General Alberto Gonzales, four other former Bush administration lawyers, and me.
The allegation is not that any of us tortured anyone. And it is not that any of us even directed anyone to commit torture. The allegation is that, when we advised President George W. Bush on the Geneva Conventions and detainee interrogations, our interpretations were wrong -- in the view of the disapproving Spaniards. According to the complaint, these wrong interpretations encouraged the president to make decisions that led to torture.
The Spanish magistrate apparently believes that it can be a crime for American officials to offer the wrong kind of advice to a president of the United States and, furthermore, it can be a crime punishable by a Spanish court. This is a national insult with harmful implications.
The general sloppiness of the complaint's factual assertions is clear from its discussion of my work. The entire case against me hinges on my alleged role in arguing that the detainees in Guantanamo Bay should not receive protection under Geneva Article 3 relating to humane treatment. I never made any such argument.
On the contrary, the most significant role I played in the debates about Geneva was in early 2002 when I -- together with Chairman of the Joints Chiefs of Staff Gen. Richard Myers -- helped persuade Secretary of Defense Donald Rumsfeld to take a strongly pro-Geneva position in the first National Security Council meeting on the subject on Feb. 4.
Noting in writing that Geneva is part of U.S. law, I argued it is a good treaty and it is "important that the President appreciate DOD's interest in the Convention." I wrote that "U.S. armed forces are trained to treat captured enemy forces according to the Convention," that Geneva is "morally important, crucial to U.S. morale," and that it is also "practically important, for it makes U.S. forces the gold standard in the world, facilitating our winning cooperation from other countries."
In conclusion, I urged "[h]umane treatment for all detainees" and recommended that the president explain that Geneva "does not squarely address circumstances that we are confronting in this new global war against terrorism, but while we work through the legal questions, we are upholding the principle of universal applicability of the Convention."
I briefed these arguments directly to the president at that Feb. 4 NSC meeting, and his decision on Geneva's applicability to the war against the Taliban was consistent with them.
The allegation that I argued against Article 3 protection was invented by a British lawyer named Philippe Sands and published in an angry, wildly inaccurate book called "Torture Team." Mr. Sands asserts that, in our interview, I admitted making the case against Article 3. He was eventually compelled to publish the interview transcript, however, and it shows that nothing I said supports his allegation, that he grossly misquoted me on a number of points, and that he never asked me a single question about Article 3. Mr. Sands has to this day never accounted for how he could charge me with opposing Article 3 based on an interview in which the term "Article 3" was never even mentioned by me or him. I dissected Mr. Sands's misrepresentations in detail in testimony I gave to the House Judiciary Committee last summer.
As bad as the Spanish complaint is for relying expressly on Mr. Sands's discredited book for facts, it is far worse for the principle it is trying to establish -- that a foreign court should punish former U.S. officials criminally if the judge thinks their official advice to the U.S. president violated international law. Whatever advice any of us offered the president on these debatable issues, it would be an unprecedented outrage to make our participation in government policy making a subject for second-guessing in a foreign criminal court.
From the Nuremburg trials of the Nazi leadership forward, none of the cases in which former government officials have been tried for international crimes are actually precedents for what the Spanish officials are now considering. In countries run by officials who rule by force, commit aggression, perpetrate humanitarian outrages and stand above and out of reach of any domestic law, leaders are sometimes tried by international tribunals. Such countries' sovereignty is not respected because their own domestic laws -- let alone their international legal obligations -- do not bind their leaders.
But ours is a country of laws, and no reasonable person doubts that the American legal system has integrity. If President Barack Obama and the prosecutors see a crime to be prosecuted, they can act. It would be hostile for a foreign official to decide that U.S. sovereignty on this matter should not be respected because the U.S. is like Nazi Germany or Serbia under Slobodan Milosevic.
What if a Spanish magistrate doesn't like the legal analyses prepared by U.S. officials on other subjects, such as nuclear weapons, or the death penalty, or atmospheric pollution, or border security with Mexico? Any of these matters could be the basis for a claim by a creative European jurist that a U.S. official is taking a position contrary to international law as interpreted by right-thinking Europeans.
It seems clear that the goal of this judicial exercise is to carry a political disagreement into criminal courts and thereby to intimidate U.S. officials. If Spanish officials decide to carry the prosecution forward, then Americans who know that their views run contrary to those of various Spanish or other European activists would have to think twice about voicing those views -- or stay out of U.S. government service altogether -- if they want to avoid being threatened with arrest in Europe.
The American people can tolerate this only if they are willing to forfeit the right to make their own laws and policies. This is not a left-versus-right political issue. It is a question of preserving the American constitutional system of government in which U.S. officials are answerable for their opinions and advice to the American people -- but not to foreign criminal courts.
Mr. Feith, a former under secretary of defense for policy (2001-05), is a senior fellow at the Hudson Institute. He is the author of "War and Decision: Inside the Pentagon at the Dawn of the War on Terrorism" (HarperCollins, 2008).
Please add your comments to the Opinion Journal forum.
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