Spanish Audienca Nacional opens criminal probe against Guantanamo lawyers

(Updated version.)

A group of 4 lawyers which are part of the ‘Association for the Dignity of Prisoners’ (Asociacion pro dignidad de los presos y presas de espana) Boyé Gonzalo, Isabel Elbal, Luis Velasco and Antonio Segura), filed a criminal complaint against Jay Bybee, Douglas Feith, Alberto Gonzales, David Addington, John Yoo and William J.Haynes II on the 17th of March at Spain’s Audienca nacionial for committing crimes under Chapter III of Title XXIV of the Spanish Criminal Code (“Crimes against protected persons and property during an armed conflict”). 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”.

On March 29, the complaint became public after Garzón, 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. Garzon is not bound by their decision however. 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.” Boyé predicted that Garzón would issue subpoenas in the next two weeks, summoning the six former officials to present evidence.

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 to Spain or any of the 24 nations that participate in the European extraditions convention (it would have to follow a more formal extradition process in other countries beyond the 24).. 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.

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.”

Signatories to CAT have the authority to investigate torture cases, especially when their own nationals have been involved. The current criminal case evolved out of an investigation into allegations, sustained by Spain’s Supreme Court, that Spanish citizens had been tortured in Guantánamo. Spain had earlier opened proceedings against several people for their alleged links to the Syrian-born Spaniard Imad Yarkas, who was serving 12 years in prison for belonging to al-Qaeda. Hamed Abderrahman Ahmed, from the Spanish enclave of Ceuta, was transferred from Guantanamo to Spain in February 2004 to be prosecuted for this reason. Lahcen Ikassrien, a Moroccan national who lived for more than 13 years in Spain, was transferred from Guantanamo in July 2005 to Spain. Ahmed was released on bail in July 2004, but was later put on trial and was sentenced to six years in prison by the Spanish High Court in October 2005. In June 2006, however, the Spanish Supreme Court threw out Yarkas’ conviction for conspiracy to commit murder in the 9/11 attacks. The Supreme Court ordered Ahmed’s immediate release in 2006, and said that the High Court had not considered him “innocent until proven guilty,” and had used evidence collected at Guantánamo that “should be declared totally void and, as such, non-existent.” Both men were interrogated by Spanish intelligence agents in Guantanamo.

Garzon also had sought the deportation of two former British Guantánamo Bay detainees, Jamil el-Banna and Omar Deghayes, for being associates of Yarkas and being members of the terrorist cell Islamic Alliance in Madrid which allegedly recruited jihadis, and sending them to camps in Afghanistan and Indonesia, raised funds and disseminated al-Qaida propaganda in Spain. Garzón ruled earlier this month however that the pair were suffering severe mental and physical problems after their time in Guantánamo and were not fit to stand trial in Spain. He based his decision on medical reports on their condition provided by the British authorities.

According to the judge’s order, two British doctors, Jonathan Derek Fluxman and Helen Bamber, examined the pair at the Harrow Road health centre in February and diagnosed serious medical conditions caused by torture at the hands of their captors and the inhumane conditions in which they were kept for five years. Garzon’s order blamed the medical condition of Banna on the “five years [he spent] in secret prisons in Gambia and Afghanistan and latterly in Guantánamo … in inhumane conditions”, during which time he was tortured, resulting in the “progressive deterioration of his mental condition”. In the case of Deghayes, it said he was tortured and badly treated in prisons in Islamabad, Bagram and finally Guantánamo before his release at the end of last year.

The fact that some earlier classified internal memo’s of the lawyers of the administration were released this year, combined with the fact that the torture in Guantanamo and secret detention centres blocked the Spanish investigation into the domestic Alliance case and the fact that the two Spanish residents have also been acquitted partly because evidence obtained by Spanish intelligence officers in Guantanamo could not be used as evidence in court, seem to increase substantially the chances that the complaint against the six lawyers will be deemed admissible, as they were responsable for the approval and implementation of the legal framework of Guantanamo, which included torture.

The team of lawyers is the same that succesfully started the lawsuit on behalf of some of the Palestinian relatives of some of the deceased against former Israeli Defense Minister Binyamin Ben Eliezer and six others for their responsibility in the deaths of 14 civilians in a bombing in Gaza in July 2002.

The Audienca Nacional has  previously taken on other high-profile human rights cases outside of Spain, such as charges against former Chilean dictator Augusto Pinochet and more recently against former military leaders of El Salvador. The case will again spark the debate on universal jurisdiction laws.

Earlier the Center for Constitutional Rights (CCR), the International Federation for Human Rights (FIDH), and the European Center for Constitutional and Human Rights (ECCHR) have filed a total of three cases against Rumsfeld and others in Germany and France under universal jurisdiction laws, for the torture of detainees in Iraq, Afghanistan, Guantanamo, and in secret sites. Plaintiffs had demonstrated that Rumsfeld, in violation of the Convention against Torture, was responsible for having directly and personally crafted and ordered the use of “harsh” interrogation techniques constituting torture. The complaints, accompanied by several hundred pages of evidence, also alleged that such techniques were implemented under Rumsfeld’s supervision, and that, starting in 2002, he personally managed several torture sessions of terrorist suspects.

The decision in Germany to dismiss the groups’ criminal complaint filed in 2006 on behalf of 12 plaintiffs is currently being reviewed by Frankfurt’s High Regional Court.

More here and here.

Update: New York Times coverage here, The Guardian report here, including some comments:

Gonzalo Boye, the Madrid lawyer who filed the complaint, said that the six Americans cited had had well-documented roles in approving illegal interrogation techniques, redefining torture and abandoning the definition set by the 1984 Torture Convention.

Mr. Yoo declined to comment on Saturday, saying that he had not seen or heard of the petition.

Mr. Feith, who was the top policy official at the Pentagon when the prison at Guantánamo was established, said he did not make the decision on interrogation methods and was baffled by the allegations. “I didn’t even argue for the thing I understand they’re objecting to,” he said. But Mr. Boye said that lawyers should be held accountable for the effects of their work. Noting that the association he represents includes many lawyers, he said:

“This is a case from lawyers against lawyers. Our profession does not allow us to misuse our legal knowledge to create a pseudo-legal frame to justify, stimulate and cover up torture.”

More opinions here.

The Time wraps it up nicely here.

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7 Responses

  1. Good analysis here: http://harpers.org/archive/2009/04/hbc-90004677

  2. Interesting academic article here on the ethical responsibilities of the lawyers who advise executive branch officials on the lawfulness of actions taken in the name of national security.: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1372744

  3. On the role of Philippe Sands’ book: http://www.cageprisoners.com/articles.php?id=28577

  4. Wall Street Journal opinion: http://online.wsj.com/article/SB123914679286098931.html

  5. […] US embassy in Madrid briefed Washington on the request of the ‘Association for the Dignity of Prisoners’ to the Audienca Nacional in March 2009 to indict six Bush Administration officials for creating a legal framework that […]

  6. […] on 2 December, 2010 by Mathias Vermeulen The US embassy in Madrid briefed Washington on the request of the ‘Association for the Dignity of Prisoners’ to the Audienca Nacional in March 2009 to indict six Bush Administration officials for creating a legal framework that […]

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