Spanish Supreme Court Trial of Six Bush-era Lawyers Continues

DISCLAIMER: This is my initial draft for a blog post I wrote for work. This is a link to the actual blog post that was published on Physician’s for Human Rights’ website that my boss, Kristine Huskey, edited heavily – and well, I might add! I would like to credit her for the conceptualization of this initial draft.

Have you heard about the Spanish Supreme Court trying six Bush-era lawyers? The case concerns the accountability of six Bush-era lawyers where each was alleged in participating or aiding and abetting the torture and other serious abuses of persons detained at US detainment facilities at Guantanamo and other overseas locations.

In March 2009, a criminal complaint was filed by the Spanish Association for the Dignity of Male and Female Prisoners of Spain against “The Bush Six”: John Yoo, Jay Bybee, Alberto Gonzales, William Haynes, David Addington, and Douglas Feith. The complaint cites various international law instruments as justification for prosecution, namely the Geneva Conventions and its subsequent Additional Protocols, as well as the Convention against Torture.

In response to Judge Velasco’s International Rogatory Letters – intended to determine the appropriate jurisdiction for the complaint – the US government upheld that they were adequately investigating torture allegations of detainee mistreatment, citing the criminal prosecutions of defense contractors David Passaro and Don Ayala, and called for the complaint to be sent to the US for further investigation, “if appropriate”, by US authorities. CCR and ECCHR responded to their submission by demonstrating that the United States had not and would not “investigate or prosecute the defendants or the punishable acts” and therefore Spain should uphold universal jurisdiction in order to prosecute the egregious human rights violations committed by the US.

The Central Court Number 6 ruled on April 13, 2011, in an order by investigative magistrate Judge Velasco, that the US was sound in its investigations of torture allegations in its respective court system. To counter the decision by the Court, the Association filed an appeal, yet the decision was again upheld by Section Three of the Criminal Division of the National Court ruled, by majority, which found that the appeal should be dismissed and the original decision upheld. The Association filed an appeal on June 12, 2012 before the Spanish Supreme Court (Audiencia Nacional), and this amicus brief will support the appeal on the grounds that there have not been and are not currently any criminal investigations of former senior-level Bush administration officials for creation or implementation of a detention and interrogation policy that culminated in cruel and unusual punishment and treatment of prisoners and other serious violations of international law.

A recent amicus brief  by the Center for Constitutional Rights (CCR) and the European Center for Constitutional Human Rights (ECCHR) on upholds the principle of universal jurisdiction in international law, which means that Spain has the right to try these six individuals since the US will not. The March 2011 US Submission clearly states that the Department of Justice has no intention to “bring criminal cases with respect to any other executive branch officials, including those named in the complaint, who acted in reliance on [Office of Legal Counsel] memoranda during the course of their involvement with the policies and procedures for detention and interrogation”, despite having the legal framework to do so. The brief further illustrates that the US Attorney General has virtually shielded involved US officials after preliminary investigations into a number of interrogation cases “excluded from prosecution ‘anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.’”

This case and subsequent amicus brief is particularly significant in the wake of Attorney General Eric Holder’s Aug. 30th decision to cease the Department of Justice investigation into the deaths of two prisoners tortured in US federal custody on the grounds that “the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt”, only further demonstrating the US government’s continued avoidance of holding accountable those involved in the torture of US detainees and continued indifference for torture as cruel and unusual punishment by hiding behind shadows and technicalities instead of utilizing the US legal system as it was intended to come to terms with the vast amount of human rights violations committed by the pens of Bush administration legal counsel and the hands of US military personnel, and restoring its once-golden reputation as a champion of human rights, globally.