Anthony Clark Arend and Stephen Bainbridge offer some interesting comments on the Audencia Nacional’s decision to take up a preliminary review of a complaint involving six Bush administration lawyers (reported here). Bainbridge stresses the fundamental questions concerning universal jurisdiction:
Spain is claiming jurisdiction to investigate and, if warranted, try US nationals for conduct committed in the US and which impacted, as far as I can tell, on 5 Spanish nationals for conduct they allegedly committed outside Spain… Universal jurisdiction raises several concerns when extended to these kinds of cases, as opposed to piracy and the similar crimes it was originally developed to deal with. Piracy and terrorism often involve non-state actors whose conduct occurs at sea or in failed states or with the aid of state sponsors. Absent some form of universal jurisdiction, there is no chance of punishing and deterring such crimes.
In contrast, here we are dealing with state actors. Applying universal jurisdiction here raises a number of concerns… do we really want a lone national judge in one state interfering with issues of global diplomacy?
These are fair points. I think it’s clear that the international system is stressed whenever one nation’s criminal justice system takes up charges against officials of another government. Whatever the legal rules, prudential considerations would suggest proceeding in such cases only with a great deal of caution. But there are some further considerations worth taking into account here.
While much attention has surrounded Judge Garzón, whom Bainbridge describes as “crusading,” it’s important to note that the path for this investigation was laid out in a decision made by Spain’s Supreme Court in July 2006, which (ruling against Garzón and his colleagues, in fact) found that the evidence that the Spaniards had been mistreated in Guantánamo was substantial. The Spanish Court went on the castigate Guantánamo as a “legal black hole” and to insist that Spanish prosecutors not use evidence derived from interrogations conducted there. That decision not only opened the door for the current investigation, it actually provided pressure for it to happen.
Second, the Spanish action occurs in part because the United States, which has been presented with these allegations for five years, has failed to undertake a serious criminal inquiry into them. It is true that the Justice Department’s Office of Professional Responsibility launched an ethics probe into these issues, which–four years later still has not been concluded. But there has been no criminal investigation as a result of political decisions by the former attorney general blocking one. One of the considerations for the Spanish court before proceeding with this matter will be whether the United States is likely to act. If the U.S. Justice Department were to launch a criminal investigation, my expectation is that the Spanish court would at least suspend its investigation, deferring to the Americans. That means that, by a strange twist, the most effective thing the Obama Administration could do to protect the “Gonzales Six” would be to open its own criminal investigation. Of course, an adequate basis clearly exists for such an investigation to be undertaken–and it’s likely that when the OPR report is released there will be further calls for such an investigation. On the other hand, the failure of U.S. authorities to investigate does bolster the right of the Spanish court to act.
Third, it is important to note that the Spanish proceedings are still at a very preliminary stage. All that has happened so far is a referral of the criminal complaint by Judge Garzón to the procuracy for a view as to whether a sufficient basis exists to proceed—that is to say, the case has cleared only the first threshold. It still has some course to go. (Although Spanish criminal lawyers assure me it is, even at this stage, an “open criminal case,” and that arrest orders do frequently issue even at this stage).
Fourth, it has been suggested to me–but I cannot confirm–that prosecutors in other NATO nations are looking to bring forth cases like the one brought in Spain.
All this suggests that dismissing this as a “Garzón problem” is wishful thinking.
Bainbridge concludes with the view that “The Bush policy on terror was a bad policy. But allowing Garzón to go forward is also a bad policy.” This perspective is very troubling to me. The major fallback defensive position now adopted by the torture camp (which does not include either Bainbridge or Arend) is that this is all an honest difference about policy and that we really shouldn’t be criminalizing such differences. But in fact torture is criminal conduct, and has been understood as such for a long time. As Jeremy Waldron demonstrated in a recent article, only genocide and slavery share a similar basis of universal acceptance as criminal conduct, and of the three, the arguments against torture are the strongest. The discussion is whether the prohibition against torture will be upheld or simply become a dead letter. If it can be overcome whenever a government can get its handpicked lawyers to issue opinions saying torture is okay, then the prohibition will be worthless, because–unfortunately for my profession–such lawyers have always been available for the asking. On the other hand, it may be that this approach can only be effectively thwarted if lawyers know they face criminal law accountability for giving a green light to torture.
The best solution to this problem would plainly be for the United States to take it head-on. The issue should be examined closely by a well-regarded non-partisan prosecutor. After all the facts have been fully developed and studied and the legal issues reviewed, a decision should be reached as to whether or not charges should be brought. The public should be prepared to accept that decision, whatever it is.
