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:

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Six Questions October 18, 2014, 8:00 pm

The APA Grapples with Its Torture Demons: Six Questions for Nathaniel Raymond

Nathaniel Raymond on CIA interrogation techniques.

No Comment, Six Questions June 4, 2014, 8:00 am

Uncovering the Cover Ups: Death Camp in Delta

Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp

Get access to 164 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

May 2015

Black Hat, White Hat

= Subscribers only.
Sign in here.
Subscribe here.

Beyond the Broken Window

= Subscribers only.
Sign in here.
Subscribe here.

In Search of a Stolen Fiddle

= Subscribers only.
Sign in here.
Subscribe here.

Displaced in the D.R.

= Subscribers only.
Sign in here.
Subscribe here.

The Quietest Place in the Universe

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
“Don sucked the last of his drink through his straw and licked his lips. 'The coast, to me, is more interesting than the valley.'”
Photograph by the author
Article
Fred Morton, who died this week in Vienna, at the age of 90, was a longtime contributor to Harper's Magazine and a good friend. "Othello's Son," which was listed as a Notable Essay in Best American Essays 2013, appeared in our September 2013 issue.
Photograph © Alex Gotfryd/CORBIS
Article
Beyond the Broken Window·

= Subscribers only.
Sign in here.
Subscribe here.

“By the time Bratton left the department, in 2009, Los Angeles had quietly become the most spied-on city in America.”
Illustration by Taylor Callery
Article
Displaced in the D.R.·

= Subscribers only.
Sign in here.
Subscribe here.

“How is it possible that my birth certificate is invalid if I was born here?”
Photograph by Pierre Michel Jean
Article
The Quietest Place in the Universe·

= Subscribers only.
Sign in here.
Subscribe here.

“Gaitskell and his colleagues are approaching the revelation of a new order, a new universe, in which even light will be known differently, and darkness as well.”
Painting by Sebastiaan Bremer

Number of African countries with vaccination rates higher than that of the United States:

16

Iowa urologists reported that only a minor portion of locker-room teasing arises from “the presence of excess foreskin”; most teasing targets small penises.

A farmer in Surrey, England, was ordered by the Reigate and Banstead Borough Council to tear down his cannon-equipped castle, which he had built secretly and then concealed behind hay bales.

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

HARPER’S FINEST

Subways Are for Sleeping

By

“Shelby is waiting for something. He himself does not know what it is. When it comes he will either go back into the world from which he came, or sink out of sight in the morass of alcoholism or despair that has engulfed other vagrants.”

Subscribe Today