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14 April 2009

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wcw

Nice Orwell reference, and thanks -- seconded.

Eric Dönges

"All that is needed for true satisfaction is to sit by the river and wait for your enemy's body to float by." (Supposed Pushtun Saying)

I heard it as a supposedly Chinese saying ... Unfortunately, I don't think this Spanish lawsuit is going to get very far, so we're unlikely to see those particular bodies floating by anytime soon.

zanzibar

Maybe the Spaniards will shame our people to uphold our Constitution. But .... I don't have any expectation that justice will be served. A whitewash ... maybe.

Nightsticker

Colonel Lang,

"we're unlikely to see those particular bodies floating by anytime soon."

Still, an important milestone has been passed. The issue/question of criminal prosecution of Bush regime officials has been legitimized. Reasonable men may arrive at different answers on the issue/question but it is a genie that probably can't be put back in the bottle. Then there is the yet unmentioned threat of civil suits by the victims. If I were one of the "Torture 5", I would be worried, very worried.

Nightsticker
USMC 65-72
FBI 72-96

Fred

If memory serves immmediately after 9-11 the Bush administration made statements to the effect that al Qeada was roughly 2,000 strong. According to this document there were 528 GTMO detainees who were subject to torture. We certainly didn't capture 25% of al Quada in 2001-2002?

jr786

Another Pashtun saying has it that you should never call a man a friend until you ask him for a favor and he agrees.
The favor is to go to his house at 3 in the morning and ask his help in burying a dead body.

JerseyJeffersonian

Colonel and All,

More background can be found in this post from Scott Horton:

http://www.thedailybeast.com/blogs-and-stories/2009-04-13/the-bush-six-to-be-indicted/

His work at Harpers is always of a high standard and worthy of consideration.

Take that AG Holder. What about our obligations under treaties to which this country is signatory? This country talks a lot about the rule of law. Well? Are you just going to stand there while the world draws justifiable conclusions?

Viva Espana!

William R. Cumming

Okay PL what is your view of the Saying "No permanent enemies just permanent interests" or some variation thereof?

steve

The Horton piece states that both Spain and the US seem determined that the investigation does not interfere with their ongoing attempts at good relations:

"Both Washington and Madrid appear determined not to allow the pending criminal investigation to get in the way of improved relations, which both desire, particularly in regard to coordinated economic policy to confront the current financial crisis and a reshaped NATO mandate for action in Afghanistan. With the case now proceeding, that will be more of a challenge."

I have no hope that the US will initiate its own criminal proceedings, but perhaps this signals that the US will not interfere in the Spanish case.

Howard C. Berkowitz

This isn't new for Spain, as with Pinochet, although they have been reviewing their policy to require some Spanish connection. I've written a bit about the principles, and also some related U.S. cases, at http://en.citizendium.org/wiki/Universal_jurisdiction.

It's certainly not clear-cut. Still, there's the U.S. case of Filartiga v. Pena-Irala where Argentinians pursued U.S. court action against torture in Argentina.

Patrick Lang

WRC

Countries do not have friends or enemies, only interests. That would be my version. pl

curious

the extradition part is interesting, if it were to happen.

http://www.guardian.co.uk/world/2009/mar/29/guantanamo-bay-torture-inquiry

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.

robt willmann

This complaint in Spain is instructive and encouraging.

Spain, like Italy and others, has a magistrate type of criminal justice system, in which a judge (magistrate) is actually the one who investigates the case. This is a notion foreign to our legal system.

Some magistrates in Italy bravely investigated and brought formal charges against La Cosa Nostra a number of years ago, and some were killed in the process. But they had some success.

Also in Italy, its magistrate system brought charges against CIA or other U.S. operatives who were allegedly involved in kidnapping a Muslim in Italy and transferring him to Egypt, I think it was, to be tortured.

People may make fun of Italians and their relaxed view of life, their socializing around wine and coffee, and extended lunch breaks each day. But the brain power in that country is substantial, regardless of the social context in which it operates. And they made the CIA and/or the executive branch look silly when they nailed the "covert ops" in that kidnapping case.

I was at first unsure whether the complaint had been issued by the magistrate after an investigation, or whether it was in the preliminary stage with the prosecutor. Scott Horton's article in the comment quoted above clarifies that the procedure is in the beginning stages.

I would like to find a clear translation of the complaint, but from the Google computerized translation, it takes a somewhat unique approach by going after the lawyers who broke the law in creating an alleged legal justification for the practice of torture in interrogation. The Spanish prosecutor primarily authoring the complaint uses the fact that these lawyers cannot "play dumb" and claim they did not know even what the U.S. law says about torture, and were only "following orders". And on top of that, they were the main creators of the obviously phony legal rationale for the torture program.

This is a sophisticated line of attack by the Spanish prosecutor and helps establish "intentional or knowing" violations of law.

One perceptive point in the complaint was that the U.S. lawyers redefined torture in one way by saying that torture was no longer defined by the behavior intending to cause and causing pain and suffering, but on the outcome of the pain and suffering: whether it caused organ failure, blah, blah, blah, and etc.
Thus, prior to the type of serious bodily injury or death or psychological damage described in the torture memos from the Bush jr. administration, the interrogator can do anything and be as viciously abusive as he or she wants. Whether torture existed depended only on the physical or mental condition of the person after the torture was over!

By primarily focusing on the Spanish citizens at (or who were at) Guantanamo Bay, the investigating magistrate will have a better legal argument concerning the always controversial subject of "universal jurisdiction".

Jurisdiction, of course, is the ability and authority of a court to hear and decide a particular matter involving certain persons or organizations, and to issue an order or judgment resolving the matter. Whether there is then a mechanism to enforce the order or judgment is another big issue.

Former U.S. Attorney General Alberto Gonzales, Douglas Feith, John Yoo, Jay S. Bybee (now a federal appeals court judge), David Addington, and William J. Haynes are likely going to find themselves on the receiving end of formal charges in Spain.

Although they most certainly thought that their silly, so-called legal reasoning was cute and clever, if they are charged in Spain, it will be no laughing matter for them, as people in other countries will then be inspired to investigate and bring charges, or to honor an arrest warrant issued by a Spanish magistrate.

The Big Six, however, are safe in the U.S.A.

I heard president Barack Obama say on television to a question on torture or a related issue something like, "no one is above the law, but my opinion is to move forward". Translated into English, this means that nothing is going to happen and that they are above the law.

And Attorney General Eric Holder?

No difference.

In fact, when Holder was in the Justice Department in the Bill Clinton administration, he had the task of preventing a Congressional inquiry into what was obviously the murder of a man in federal custody named Kenneth Michael Trentadue. The murdered man's brother, Jesse Trentadue, happened to be a lawyer in Salt Lake City, Utah, and in a civil suit, e-mails were obtained that noted Holder's role in working to block an investigation in Congress.

Leon Panetta, the director of the CIA, said in February 2009 that Obama's policy is to not prosecute CIA interrogators who were following the "advice" of the Justice Department's "legal memos".

http://www.npr.org/templates/story/story.php?storyId=100344105

This is, as the story states, a "policy". It is not the law, as there is no affirmative defense written into any federal criminal law of which I am aware that excuses a criminal act because a lawyer in the Justice Department wrote an opinion letter saying it is OK to commit the crime.

In this age of fast international travel and communications, the action is Spain raises cutting edge legal issues and presents the first serious attempt to do something about one of the offshoots of the U.S. going to war on false pretenses.

D. Tucker

Be wonderful to see a few more choice holiday "destinations" - e.g., France, Italy, Greece, Turkey, Portugal, New Zealand, Croatia, the Czech Republic, etc. closed off to Mssrs. Feith, Addington, etc. If for no other reason than pour encourager les autres.

graywolf

Sovereignity anyone?
I presume all you people so rooting against US sovereignity are on US passports?
Hypocrisy, anyone?

Tyler

Is that picture of Saint Michael?

Mad Dogs

Totally OT Pat - Since everybody deserves a ray of sunshine, I just had to pass this along, by way of Andrew Sullivan:

Cheer Yourself Up

A 47 year old homely matron shows up on Britain’s Got Talent...Seriously, I’m still choked up.

And as one of Andrew’s readers writes:

I watched Susan Boyle over and over today. I’m so moved by it… her voice is simply beautiful, of course, but she owned that stage. She knew she belonged there - where the hell did that assurance come from?

I looked up her story: she was bullied terribly as a child, had or has a disability, has never been married, never been kissed, probably never been somebody’s most important person. After all that, and having just come out of serious depression on her mother’s death, what on earth gives her the confidence to get up there on the stage? Where did she find that courage?

Simply marvelous!

Pitchforks,Torches&Pikes World

Ah.If only.In a more perfect world.

jon

The trials are an honor and obligation the United States should reserve to itself. Should we prove unequal to the task, Spain and perhaps other venues, are most gracious to offer to put things right.

I wonder whether those indicted will follow Demjanjuk's parry, and seek to have extradition voided over concern that they might be subject to torture in a foreign country?

I also look forward to their basing their defense on the dictum that 'they were only giving orders'.

There will also be some interest into the question of whether they suborned the law on their own initiative, or whether there might be others that inspired and directed their actions.

Charles I

"I presume all you people so rooting against US sovereignity are on US passports?"

Well, I'm Canadian, but 2 things. I'd like to see anybody arrest any of the usual suspects, from the top down.

But if it was my country, I'd be national sovereignty all the way, that's my tribe you foreign devils, though screaming for domestic prosecution.

Besides, our politicians just are not going to start handing each other & minions over to foreign governments. Maybe a lawyer or two.

I meant 3 things.

Sometimes graywolf, Sovereignty includes obeying sovereign-made law, which on occassion incorporates foreign treaties, international, even foreign statutes by reference. Say, the erstwhile ABM treaty, the Geneva Accords, The International Postal Union, or the Criminal court at the Hague.

Turns out Canada has war crimes legislation enacting domestic jurisdiction over extra-territorial war crimes. There's been a few anemic prosecutions of geriatric Nazis, a la Demanjuk, seen this week being rousted in his wheelchair
The government mightn't allow them - there's an Attorney General authorization requirement or veto - but I know that private efforts are underway here now to attempt to have cases brought in the Hague and here against Israel over Gaza.

Stands to reason people would try on the Cheyney/Bush/Yoo axis, but NO Canadian government is ever going to authorize war crimes prosecution of former American . . . patriots here.

It really would be best if America could try a few of them, or its gonna be the death of a thousand cuts, some diplomatic fiasco somewhere, best be proactive - and in control. Well, more likely to be in control, as opposed to totally reactive to the next news cycle.

Kanzan

No hypocrisy, Graywolf. Are you saying that the USA does not need to observe the terms of the treaties it is signatory to?

By failing to properly investigate and prosecute as we are bound to by both statute and treaty, we are placing these men above the law of the land. Spain is doing their duty by the same treaty that we are ignoring as inconvenient.

Ian

I would have to condemn extraordinary rendition to Spain, but it would certainly be ironic.

Countries do not have friends or enemies, only interests.

Would it be fair to say that countries have sentiments? For reasons of history or ideology, it's not uncommon for the general population of a country to lean in one direction or another, even when cold calculation would argue against doing so. (possible examples: Commonwealth support for Britain in WWII, the effort required to maintain the Egypt-Israel entente in the face of opposition by much of the Egyptian population)

Even if we want to call such sentiments interests, they seem to be interests of a different kind than realpolitik would allow. For one, they tend to be durable, intergenerational affairs.

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