No Comment — January 18, 2012, 11:03 am

Spanish Court Resumes Gitmo Prosecution

On Friday, a judge from Spain’s national security court, the Audiencia Nacional, issued a decision directing the resumption of criminal proceedings relating to the torture and mistreatment of three prisoners held in the American detention facility at Guantánamo Bay. El País reports (my translation):

Judge Pablo Ruz of the Audiencia Nacional has reactivated a case initiated by [Judge Baltasar] Garzón relating to the torture of four Islamists, one of them the so-called “Spanish Taliban,” during their captivity at the U.S. base at Guantánamo; according to the judge the case involves crimes of torture, crimes against humanity, and war crimes.

The judge concluded that there is sufficient basis to support a finding of jurisdiction for the Spanish courts to investigate the facts, as the case has a “connection relevant to Spain.” Even though the plenary chamber of the court’s criminal division has established a preference for U.S. jurisdiction in such cases, the exercise of Spanish jurisdiction would be appropriate because there is no evidence that either the U.S. or the U.K. had opened an investigation or commenced a prosecution of the crimes in question.

The case has a long history. The three former prisoners were released from custody in 2007 at the request of the British government, and were then turned over to Spain under a Spanish arrest warrant charging them with complicity in acts of terrorism. The Spanish case, brought by Judge Garzón, was dropped, and a later ruling in the Spanish Supreme Court rejected the prosecution’s reliance on statements made by the prisoners during their Guantánamo captivity, suggesting the court’s belief that the prisoners had been tortured. The court later opened preliminary inquiries into their allegations of abuse.

The court issued letters rogatory to the U.S. Justice Department requesting information about the Guantánamo prisoners’ allegations, including whether the United States had conducted any inquiry of its own. Although the Justice Department responded to another Spanish court looking at accusations against Bush Administration lawyers with a letter claiming that the cases were the subject of a pending investigation (claims sharply contested by lawyers for the victims) it defaulted on Judge Ruz’s requests, laying the grounds for the ruling reopening the case.

The court’s nineteen-page opinion focuses on questions of jurisdiction and complementarity—the “traffic rules” used by courts to determine who will proceed first in cases where multiple prosecutors have a basis for claiming jurisdiction. The opinion concludes that the Spanish citizenship of one of the three prisoners furnished the essential jurisdictional connection for Spain.

It remains unclear who might be prosecuted in the case; the opinion mentions a number of senior Bush Administration figures. Judge Ruz requested that prosecutors take a position on this issue before the case proceeds. While the Audiencia Nacional adopted a decision in January 2010 viewing the “intellectual authors” of the policy that permitted torture as the persons principally culpable, former Spanish attorney general Cándido Conde-Pumpido sharply disputed this perspective, arguing that only the persons who physically committed the acts of torture or abuse could be charged. WikiLeaks cables published in El País subsequently revealed that Conde-Pumpido had been the target of aggressive lobbying by American politicians and diplomats seeking his intervention to spike the Guantánamo prosecutions. Conde-Pumpido resigned as attorney general last month, and Spain’s new government is currently in the process of designating his successor.

The court has requested that El País turn over its cache of Spain-related WikiLeaks cables so that they may be examined in connection with the case. It has also requested formal submission of a report by Human Rights Watch studying the conditions in Guantánamo that are the subject of some of the complaints.

Submissions by lawyers for the victims strongly suggest that they are pursuing a strategy focusing on claims against Major General Geoffrey Miller, a former Guantánamo camp commander whose practices were heavily scrutinized and criticized by Congress. The lawyers have repeatedly asked for Miller to be subpoenaed and compelled to give testimony, and one of the victims has testified that Miller was the person in charge at the time he was abused.

In separate developments, a French judge has also issued letters rogatory to the Justice Department, seeking permission to travel to Guantánamo and conduct inquiries there. Le nouvel Observateur reports that Judge Sophie Clément is investigating the claims of three Frenchmen formerly held at Guantánamo, who say they were tortured and subjected to other acts of barbarity during their detentions.

As Carol Rosenberg noted in a report this past Saturday, these cases reflect European courts’ increasing tendency to conclude that the Obama Administration’s “look forward, not back” policy means that U.S. prosecutors will not meaningfully investigate or act in cases involving the torture or mistreatment of prisoners during the Bush era. Since the crimes involved are subject to universal jurisdiction—as the United States has itself long argued—this means that other nations may now conduct their own investigations and open prosecutions. This means that, far from being over, the torture investigations will now enter a new phase—one that parallels the developments following Augusto Pinochet’s rule in Chile and after Argentina’s “dirty war,” when criminal investigations were pursued largely in European courts because amnesty arrangements prevented the pursuit of justice in domestic courts.

Share
Single Page

More from Scott Horton:

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

August 2016

Four in Prose

= Subscribers only.
Sign in here.
Subscribe here.

Don the Realtor

= Subscribers only.
Sign in here.
Subscribe here.

Atlas Aggregated

= Subscribers only.
Sign in here.
Subscribe here.

The Origins of Speech

= Subscribers only.
Sign in here.
Subscribe here.

Four in Verse

= Subscribers only.
Sign in here.
Subscribe here.

A Sigh and a Salute

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
Martin Amis on the rise of Trump, Tom Wolfe on the origins of speech, Art Spiegelman on Si Lewen, a story by Diane Williams, and more

In Havana, the past year has been marked by a parade of bold-faced names from the north — John Kerry reopening the United States Embassy; Andrew Cuomo bringing a delegation of American business leaders; celebrities ranging from Joe Torre, traveling on behalf of Major League Baseball to oversee an exhibition game between the Tampa Bay Rays and the Cuban national team, to Jimmy Buffett, said to be considering opening one of his Margaritaville restaurants there. All this culminated with a three-day trip in March by Barack Obama, the first American president to visit Cuba since Calvin Coolidge in 1928. But to those who know the city well, perhaps nothing said as much about the transformation of political relations between the United States and Cuba that began in December 2014 as a concert in the Tribuna Antiimperialista.

Illustration by Darrel Rees
Article
Don the Realtor·

= Subscribers only.
Sign in here.
Subscribe here.

"If you have ever wondered what it’s like, being a young and avaricious teetotal German-American philistine on the make in Manhattan, then your curiosity will be quenched by The Art of the Deal."
Photograph (detail) © Polly Borland/Exclusive by Getty Images
Article
The Origins of Speech·

= Subscribers only.
Sign in here.
Subscribe here.

"To Chomsky...every child’s language organ could use the 'deep structure,' 'universal grammar,' and 'language acquisition device' he was born with to express what he had to say, no matter whether it came out of his mouth in English or Urdu or Nagamese."
Illustration (detail) by Darrel Rees. Source photograph © Miroslav Dakov/Alamy Live News
Article
A Sigh and a Salute·

= Subscribers only.
Sign in here.
Subscribe here.

"Si told me that various paintings had spoken to him, but he wished they had been hung closer together 'so they could talk to each other.' This observation planted a seed that would come to fruition years later in his mature work."
Artwork (detail) by Si Lewen
Article
El Bloqueo·

= Subscribers only.
Sign in here.
Subscribe here.

"Amid the festivities and the flood of celebrities, it would be easy for Americans to miss that the central plank of the long-standing cold war against Cuba — the economic embargo — remains very much alive and well."
Photograph (detail) by Rose Marie Cromwell

Chances that a Republican man believes that “poor people have hard lives”:

1 in 4

A school in South Korea was planning to deploy a robot to protect students from unwanted seductions.

Nuremberg’s Neues Museum filed a criminal complaint against a 91-year-old woman who completed a crossword puzzle that was in fact a $116,000 piece of avant-garde Danish art.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Mississippi Drift

By

Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'

Subscribe Today