By Ryan MauroFrontPageMagazine.com 4/9/2009
Critics of the Bush administration have long charged that it condoned “torture” through its interrogation and detention policies in the War on Terror. Those arguments have yet to sway the Obama White House, which has been reluctant to pursue charges against its predecessor. In Spanish judge Baltasar Garzon, however, the Bush administration’s foes have found a man who is willing to turn their allegations into a criminal case.
Garzon recently asked prosecutors to review a complaint filed against six high-level Bush administration officials, including Attorney General Alberto Gonzales; John C. Yoo, a former official in the Office of Legal Counsel of the Justice Department; Douglas Feith, the former undersecretary of defense for policy; Jay S. Bybee, Yoo’s superior at the Office of Legal Counsel; William J. Haynes III, the former General Counsel for the Department of Defense; and Davis S. Addington, the chief of staff for Vice President Cheney. The officials are accused of creating a legal framework that justified “torture” in defiance of the Geneva Conventions and the 1984 Convention Against Torture. However, the officials are not accused of engaging in torture, or even ordering it, but merely of offering their opinion on what was acceptable under international law. While the potential indictment is being framed as a debate over the legality of administration’s interrogations, the reality is that such an indictment would criminalize opinions contrary to those of Garzon and his political allies and set a dangerous legal precedent that will have serious international consequences for the United States.
The origins of the case are transparently political. For instance, the initial complaint was submitted by Gonzalo Boye of the Association for the Dignity of Prisoners. Before becoming a human-rights lawyer, Boye was convicted of being a member of the Revolutionary Left Movement terrorist organization and participating in the kidnapping of a Spanish businessman. Boye previously filed a complaint against six Israeli officials for ordering an air strike in July 2002 that killed a senior Hamas operative as well as 14 Palestinian civilians. More recently, he has been assisting a panel hired by the Arab League that meets with Hamas officials to investigate Israeli “war crimes” during the campaign in Gaza earlier this year.
Meanwhile, Garzon himself is hardly apolitical. Politically active since his college days, he was, according to The Observer’s profile, a “radical left-wing student.” In 1993, he was on the party list of the Spanish Socialist Workers Party when he ran for parliament, although he was technically an independent. He resigned in protest against the corruption he saw in the Interior Ministry. More recently, Garzon has been an outspoken opponent of the Bush Administration. In 2003, he attended an anti-war concert where he spoke out against the U.S. invasion of Iraq, which he described as an “act of madness” that was causing the United Nations to be “destroyed by thousands of bombs and missiles launched through an arbitrary, unilateral decision.” In May 2006, he said that “Guantanamo is an insult to countries that respect laws…It is a place that needs to disappear immediately.” With his nascent case against Bush administration officials, Garzon may finally get the chance to parlay his political views into a criminal indictment.
He may even get away with it. Spanish law provides for “universal jurisdiction,” enabling judges like Garzon to try foreigners for criminal violations, even if the act in question did not occur in Spain. This law has allowed Garzon to become extremely popular in Spain, where he is known for having prosecuted, among others, Augusto Pinochet, the former dictator of Chile, and Adolfo Schilingo, a former naval officer who once boasted about helping to kill political prisoners for the dictatorship in Argentina. Garzon also has sought to question former Secretary of State Henry Kissinger for his alleged role in Operation Candor, a campaign by right-wing dictatorships in Latin America to eliminate political opponents.
The targeted Bush officials have taken note. Douglas Feith, for instance, has written a response to his possible indictment. He says that at the first National Security Council meeting on February 4, 2002, he helped persuade Secretary of Defense Rumsfeld in favor of meeting the “humane treatment” standards of Geneva Conventions, even though he felt they were not U.S. law. The accusation against him, Feith says, stems from a controversial book written by Philippe Sands titled Torture Team. In it, the author falsely alleges that Feith admitted to opposing Article 3 of the Geneva Conventions, which call for “human treatment” of all prisoners. Feith says that Article 3 was never brought up in his discussions with the author, and the published transcripts show he was indeed misquoted.
While one can argue about the legality or ethics of U.S. coercive interrogation practices, indicting the Bush administration officials will set a frightening legal precedent. That is because the officials are not being accused of participating in or ordering the use of torture, but are instead accused of offering their opinion on the legality of the use of these tactics, which are being labeled by some – including, of course, Garzon – as “torture.” Thus, an indictment of these officials would essentially criminalize legal and political disagreements between countries. As Douglas Feith correctly warns, “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.”
This would not be the first time that Garzon has made a ruling that had serious implications for national security. He ended attempts to have two former Guantanamo Bay prisoners, Jamil El-Banna and Omar Deghayes extradited to Spain, arguing they couldn’t stand trial due to their poor mental condition as a result of their stay at the prison. Both men were said to be linked to an Al-Qaeda terrorist cell connected to the 9/11 attacks and the bombings in 2004 bombings in Madrid. Garzon was apparently unaware or unconvinced that Deghayes, and possibly El-Banna, were following a plan outlined in an Al-Qaeda handbook seized in Manchester. In the book, Al-Qaeda tells its operatives: “At the beginning of the trial…the brothers must insist on proving that torture was inflicted on them by state security before the judge. Complain of mistreatment while in prison.” Deghayes made outlandish claims of torture, saying he was sexually abused, refused food for 45 days, repeatedly beaten, blinded by a guard’s finger, and smeared with excrement, among other absurd allegations.
In another case, Garzon threw out all evidence against an al-Qaeda member named Abderrahman Ahmed, saying “Everything obtained from there was useless because it went against the rules.” Luckily, enough evidence existed that didn’t come from his stay at the prison for Garzon to sentence Ahmed to six years in prison.
Garzon’s record has many admirable accomplishments. He has made several statements showing that he has a sophisticated understanding of the radical Islamic enemy. In an interview with PBS on July 27, 2004, he did not shy away from blaming Saudi Arabia’s promotion of Wahhabism for its role in creating “Islamic terrorism,” a term which many U.S. officials are afraid to use. He even explained that the roots of today’s terrorist organizations lie in the Muslim Brotherhood, a group that many Western policymakers are bent on seeing as a force for moderation.
Nevertheless, the fact remains that if Garzon rules to indict the six former U.S. officials he will have overstepped his bounds to set a legal precedent that may well imperil future cooperation between countries against the common threat of Islamic terrorism.
Critics of the Bush administration have long charged that it condoned “torture” through its interrogation and detention policies in the War on Terror. Those arguments have yet to sway the Obama White House, which has been reluctant to pursue charges against its predecessor. In Spanish judge Baltasar Garzon, however, the Bush administration’s foes have found a man who is willing to turn their allegations into a criminal case.
Garzon recently asked prosecutors to review a complaint filed against six high-level Bush administration officials, including Attorney General Alberto Gonzales; John C. Yoo, a former official in the Office of Legal Counsel of the Justice Department; Douglas Feith, the former undersecretary of defense for policy; Jay S. Bybee, Yoo’s superior at the Office of Legal Counsel; William J. Haynes III, the former General Counsel for the Department of Defense; and Davis S. Addington, the chief of staff for Vice President Cheney. The officials are accused of creating a legal framework that justified “torture” in defiance of the Geneva Conventions and the 1984 Convention Against Torture. However, the officials are not accused of engaging in torture, or even ordering it, but merely of offering their opinion on what was acceptable under international law. While the potential indictment is being framed as a debate over the legality of administration’s interrogations, the reality is that such an indictment would criminalize opinions contrary to those of Garzon and his political allies and set a dangerous legal precedent that will have serious international consequences for the United States.
The origins of the case are transparently political. For instance, the initial complaint was submitted by Gonzalo Boye of the Association for the Dignity of Prisoners. Before becoming a human-rights lawyer, Boye was convicted of being a member of the Revolutionary Left Movement terrorist organization and participating in the kidnapping of a Spanish businessman. Boye previously filed a complaint against six Israeli officials for ordering an air strike in July 2002 that killed a senior Hamas operative as well as 14 Palestinian civilians. More recently, he has been assisting a panel hired by the Arab League that meets with Hamas officials to investigate Israeli “war crimes” during the campaign in Gaza earlier this year.
Meanwhile, Garzon himself is hardly apolitical. Politically active since his college days, he was, according to The Observer’s profile, a “radical left-wing student.” In 1993, he was on the party list of the Spanish Socialist Workers Party when he ran for parliament, although he was technically an independent. He resigned in protest against the corruption he saw in the Interior Ministry. More recently, Garzon has been an outspoken opponent of the Bush Administration. In 2003, he attended an anti-war concert where he spoke out against the U.S. invasion of Iraq, which he described as an “act of madness” that was causing the United Nations to be “destroyed by thousands of bombs and missiles launched through an arbitrary, unilateral decision.” In May 2006, he said that “Guantanamo is an insult to countries that respect laws…It is a place that needs to disappear immediately.” With his nascent case against Bush administration officials, Garzon may finally get the chance to parlay his political views into a criminal indictment.
He may even get away with it. Spanish law provides for “universal jurisdiction,” enabling judges like Garzon to try foreigners for criminal violations, even if the act in question did not occur in Spain. This law has allowed Garzon to become extremely popular in Spain, where he is known for having prosecuted, among others, Augusto Pinochet, the former dictator of Chile, and Adolfo Schilingo, a former naval officer who once boasted about helping to kill political prisoners for the dictatorship in Argentina. Garzon also has sought to question former Secretary of State Henry Kissinger for his alleged role in Operation Candor, a campaign by right-wing dictatorships in Latin America to eliminate political opponents.
The targeted Bush officials have taken note. Douglas Feith, for instance, has written a response to his possible indictment. He says that at the first National Security Council meeting on February 4, 2002, he helped persuade Secretary of Defense Rumsfeld in favor of meeting the “humane treatment” standards of Geneva Conventions, even though he felt they were not U.S. law. The accusation against him, Feith says, stems from a controversial book written by Philippe Sands titled Torture Team. In it, the author falsely alleges that Feith admitted to opposing Article 3 of the Geneva Conventions, which call for “human treatment” of all prisoners. Feith says that Article 3 was never brought up in his discussions with the author, and the published transcripts show he was indeed misquoted.
While one can argue about the legality or ethics of U.S. coercive interrogation practices, indicting the Bush administration officials will set a frightening legal precedent. That is because the officials are not being accused of participating in or ordering the use of torture, but are instead accused of offering their opinion on the legality of the use of these tactics, which are being labeled by some – including, of course, Garzon – as “torture.” Thus, an indictment of these officials would essentially criminalize legal and political disagreements between countries. As Douglas Feith correctly warns, “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.”
This would not be the first time that Garzon has made a ruling that had serious implications for national security. He ended attempts to have two former Guantanamo Bay prisoners, Jamil El-Banna and Omar Deghayes extradited to Spain, arguing they couldn’t stand trial due to their poor mental condition as a result of their stay at the prison. Both men were said to be linked to an Al-Qaeda terrorist cell connected to the 9/11 attacks and the bombings in 2004 bombings in Madrid. Garzon was apparently unaware or unconvinced that Deghayes, and possibly El-Banna, were following a plan outlined in an Al-Qaeda handbook seized in Manchester. In the book, Al-Qaeda tells its operatives: “At the beginning of the trial…the brothers must insist on proving that torture was inflicted on them by state security before the judge. Complain of mistreatment while in prison.” Deghayes made outlandish claims of torture, saying he was sexually abused, refused food for 45 days, repeatedly beaten, blinded by a guard’s finger, and smeared with excrement, among other absurd allegations.
In another case, Garzon threw out all evidence against an al-Qaeda member named Abderrahman Ahmed, saying “Everything obtained from there was useless because it went against the rules.” Luckily, enough evidence existed that didn’t come from his stay at the prison for Garzon to sentence Ahmed to six years in prison.
Garzon’s record has many admirable accomplishments. He has made several statements showing that he has a sophisticated understanding of the radical Islamic enemy. In an interview with PBS on July 27, 2004, he did not shy away from blaming Saudi Arabia’s promotion of Wahhabism for its role in creating “Islamic terrorism,” a term which many U.S. officials are afraid to use. He even explained that the roots of today’s terrorist organizations lie in the Muslim Brotherhood, a group that many Western policymakers are bent on seeing as a force for moderation.
Nevertheless, the fact remains that if Garzon rules to indict the six former U.S. officials he will have overstepped his bounds to set a legal precedent that may well imperil future cooperation between countries against the common threat of Islamic terrorism.
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