The Case Against the Bush Six Goes Forward…

by Kevin Jon Heller

This according to the ever-reliable Scott Horton:

Spanish prosecutors have decided to press forward with a criminal investigation targeting former U.S. Attorney General Alberto Gonzales and five top associates over their role in the torture of five Spanish citizens held at Guantánamo, several reliable sources close to the investigation have told The Daily Beast. Their decision is expected to be announced on Tuesday before the Spanish central criminal court, the Audencia Nacional, in Madrid.

[snip]

But prosecutors will also ask that Judge Garzón, an internationally known figure due to his management of the case against former Chilean dictator Augusto Pinochet and other high-profile cases, step aside. The case originally came to Garzón because he presided over efforts to bring terrorism charges against the five Spaniards previously held at Guantánamo. Spanish prosecutors consider it “awkward” for the same judge to have both the case against former U.S. officials based on the possible torture of the five Spaniards at Guantánamo and the case against those very same Spaniards. A source close to the prosecution also noted that there was concern about the reaction to the case in some parts of the U.S. media, where it had been viewed, incorrectly, as a sort of personal frolic of Judge Garzón. Instead, the prosecutors will ask Garzón to transfer the case to Judge Ismail Moreno, who is currently handling an investigation into kidnapping charges surrounding the CIA’s use of facilities as a safe harbor in connection with the seizure of Khalid el-Masri, a German greengrocer who was seized and held at various CIA blacksites for about half a year as a result of mistaken identity.

[snip]

[T]he Obama State Department has been in steady contact with the Spanish government about the case. Shortly after the case was filed on March 17, chief prosecutor Javier Zaragoza was invited to the U.S. embassy in Madrid to brief members of the embassy staff about the matter. A person in attendance at the meeting described the process as “correct and formal.” The Spanish prosecutors briefed the American diplomats on the status of the case, how it arose, the nature of the allegations raised against the former U.S. government officials. The Americans “were basically there just to collect information,” the source stated.The Spanish prosecutors advised the Americans that they would suspend their investigation if at any point the United States were to undertake an investigation of its own into these matters. They pressed to know whether any such investigation was pending. These inquiries met with no answer from the U.S. side.

Scott notes that the human-rights community may be concerned about asking Garzon to step aside.  I’m not sure if I’m a member in good standing of that community, but I have no problem with transferring the case to Ismail Moreno.  There is no question that Garzon is a polarizing figure, and the last thing an already polarizing case needs is a polarizing judge — whether he deserves the label or not.  (Not, in my opinion.)

I also think that the Spanish prosecutors are being remarkably clever by letting it be publicly known that they will step aside if the US investigates the Bush Six — Horton’s clever name for the defendants — on its own.  In essence, they are forcing the US to live up to its obligations under the Torture Convention if it wants to make the case go away.

More to come, I’m sure…

http://opiniojuris.org/2009/04/14/the-case-against-the-bush-six-goes-forward/

2 Responses

  1. Kevin – note that, in a remarkable about-face (assuming that Horton’s sources reports were accurate as of Monday, which actually seems a fair assumption), the Spanish AG now says he will recommend *against* pursuing charges. http://www.upi.com/Top_News/2009/04/16/Spains-AG-to-urge-Gitmo-probe-be-dropped/UPI-88151239881648/

    Garzon can still go forward if he wants. Though it would be uphill.

    Oh, to have been a fly on the wall in the AG’s office this week…

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