What the Spanish prosecutions of Bush administration lawyers really means.

The law, lawyers, and the court.
April 6 2009 6:21 PM

Spain's Most Wanted: Gonzales in the Dock

What the Spanish prosecutions of Bush administration lawyers really means.

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But the criminal charges also target the lawyers' argument that the laws of war do not protect nonstate actors like al-Qaida as combatants in an armed conflict and their attendant advice that the government could avoid judicial review by locating the prison camps in Guantanamo Bay rather than, say, Fort Leavenworth. As it happens, both these arguments were wrong, certainly in the eyes of the Supreme Court. But neither was insane. To be sure, advocating even legally defensible arguments could give rise to criminal culpability if those arguments were used maliciously to cover up atrocities. But proving that on the basis of the public record, under the standard of proof applicable in criminal trials, will be tricky indeed. (Click here for more on the torture charges.)

A second aspect of the Spanish prosecution troubles even some who are fully onboard with investigating the legacy of Guantanamo. That's the idea that Spainwould be doing it. There is no question that extraterritorial prosecutions like this one have a well-established basis in legal theory and practice, both domestic and international. It's called "universal jurisdiction," and while controversial in some instances, it applies to the relatively small subset of crimes so universally condemned as to be the concern of all nations wherever they occur. Applying universal jurisdiction, for example, any court in the world—in Belgium, Brazil, or Brunei—could prosecute an American citizen for torturing another American citizen, even in America.

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But the legal underpinnings of universal jurisdiction have been described as "a muddy river leading to a muddy lake." Nobody exactly agrees on them, and they stir up some serious sludge. The doctrine itself sits uneasily between two points about which people broadly agree: 1) Justice should be delivered at the local level, by representatives of the community most connected  to the moral wrong; and 2) sometimes those communities either can't, or won't, do the hard work that justice requires. In a case like Guantanamo, the exercise of universal jurisdiction typically tries to square this circle by leaving the criminal investigation to the Americans … unless the Americans aren't doing a good enough job of it. The troubles start with the debate over whether American efforts are good enough.

The Spanish investigation is not premised on universal jurisdiction in its purest form, at least not yet. The proceeding arises primarily because America held five Spanish citizens and residents at Guantanamo, including one who later escaped criminal conviction when Spanish courts found the evidence procured against him at Guantanamo "totally void." So if the allegations are true, Spain actually has its own dog in this fight: harm done to its citizens by foreign criminals. That leaves this prosecution on substantially the same footing as a U.S. prosecution of the mastermind of the Cole bombing in Yemen (because the victims were American) or the recent federal conviction of Chuckie Taylor for perpetrating torture in his father's country of Liberia (because the defendant is American).

But there are also hints in the complaint that the investigation might expand to include non-Spanish victims—including a list of victims from other countries that is dozens of pages long. That would indeed raise the prospect of universal jurisdiction. And that's when the fight would really heat up.

Here's the difficulty: Even the most adamant sovereigntists generally agree that for certain historic crimes, it is appropriate for judgment to be rendered by entities other than the host state: Nazi Germany, the former Yugoslavia, Rwanda, now Sudan. But wherever and whenever this is done, the targets and their allies talk of victor's justice, of politicized prosecutions, and of precooked show trials. There is no way around this dynamic, regardless of whether the prosecuting authority is an international tribunal or an independent state. Nor is there any way around the rebound effect: Prosecute the Eichmanns, Milosevics, and Chucky Taylors, and the Addingtons, Bybees, and Yoos may have to fight to show why this sort of exceptionalism shouldn't apply in their cases. And their allegations of politicization may ring hollow as what has become the despot's familiar countermove.

Any way you look at it, the proceedings in Madrid are a reality that will hang over counterterrorist efforts for years to come. Whether that's a good or bad thing, whether it's bravery or overreaching—and perhaps even whether these lawyers were abetting atrocities or just doing their jobs—may ultimately depend on which part of the muddy lake you're swimming in.

Correction, April 7, 2009: The article mistakenly said Augusto Pinochet was Argentina's ailing ex-dictator. (Return  to the corrected sentence.)

Julian Davis Mortenson teaches constitutional law and international law at Michigan Law School.