Spain's Most Wanted: Gonzales in the Dock
What the Spanish prosecutions of Bush administration lawyers really means.
The national-security community is buzzing with the news of Spain's criminal investigation into allegations of torture at Guantanamo Bay. The investigating magistrate, Baltasar Garzon, is a swashbuckling figure who has played a central role in some of Spain's most celebrated criminal cases. While he is sometimes accused of being a grandstander, it's hard to peg Garzon as soft on terror, given his long record of aggressive and successful criminal investigations of al-Qaida and ETA. The civilian lawyer who filed the criminal complaint may be another story. He evidently served 10 years in a Spanish prison in the 1990s for collaborating with domestic terrorists.
The list of American defendants in the case reads like a who's who from the good old days of the war on terror: Alberto Gonzales (former attorney general), David Addington (Dick Cheney's former chief of staff), William Haynes (former general counsel of the Department of Defense), Jay Bybee (former head of the Justice Department's Office of Legal Counsel), John Yoo (former deputy at the Bybee OLC), and Doug Feith (former undersecretary of defense). The names themselves are hardly a surprise, but it is still shocking to see them laid out on the page of a criminal indictment.
Nobody's been charged with anything yet. The Spanish civil law system allows criminal complaints to be filed by individual civilians, screened by an investigating magistrate like Garzon, and then referred to a prosecutor's office for preliminary assessment. After the prosecutors make their recommendation, an ultimate go/no-go decision on pursuing criminal charges follows. In the Guantanamo case, the process has only just cleared the first screening. That said, the referral makes a full investigation quite likely, and at least one official Spanish source has called eventual charges "highly probable."
This is a big deal. For years, civil rights advocates have sought to prosecute Bush administration officials for their terror policies, both at home and around the world. In some circles, there is still hope that the Obama administration will order its own criminal investigation of the torture issue. But Garzon's decision to refer the charges to the prosecutor makes all this talk suddenly concrete. In Spain such cases are a serious business, a proposition reinforced by the lasting image of Chile's ailing ex-dictator Augusto Pinochet confined to house arrest in Britain for 16 months while fighting extradition to Spain. * The magistrate who issued Pinochet's arrest warrant? Judge Garzon.
One other fact in the cart-before-the-horse department: No actual prosecuting can happen until someone arrests the suspects—Spain does not allow trials in absentia. And such arrests are hardly imminent. A State Department spokesman once said it would be "a very cold day in hell" before the United States would extradite three American servicemen to face trial in Spain for alleged war crimes in Iraq. The forecast would have to look similar before the chief corporate counsel at Chevron or a tenured Berkeley professor would be shipped to Spain, and hell will likely be clocking zero Kelvin before we extradite a sitting 9th Circuit judge on charges like these.
Even if the Spanish investigation does move forward, however, warrants for the defendants' arrest are likely to be issued in countries around the world, including at a minimum the signatories to the European Convention on Extradition. That would basically rule out travel for these six men, not just to Old Europe but to most of Eastern Europe, Turkey, and Russia. And it would cast a pretty significant pall over jaunts to other destinations as well.
The consequences are serious, even if none of the defendants is ever brought before a judge. But even if they never step into a Spanish courtroom, what makes the case so important (and some people's reactions to it unexpectedly ambiguous) is a combination of two things: what the defendants are accused of doing and the fact that this is being pushed in Spain, not here.
The charges are leveled against this group of attorneys precisely as lawyers: as advisers, adjuncts, and counselors. The complaint does not primarily focus on the suggestion that any of them individually ordered specific acts of torture. Rather, it accuses them of creating an insulating administrative framework to facilitate torture that was planned, ordered, and perpetrated by others. They are responsible, in other words, for creating a maze of legal theories that would both deny review of active torture facilities and protect torturers from punishment after the dirty work was done. One might wryly say they stand accused of providing material support for torture.
There has always been discomfort over prosecuting lawyers under these circumstances. In principle, we should have no more scruples about nailing legal facilitators than we do about going after the getaway driver in a bank robbery or the spotter working to assist a Serbian sniper over Sarajevo. But we have long balked at the idea of prosecuting lawyers for legal advice. That's one reason the post-World War II "Justice Case" (against German lawyers who created and enforced the legal framework for Nazi atrocities) had to be heard by an American-only tribunal rather than at the multinational Nuremberg proceedings: France and Britain were unwilling to impose criminal sanctions on men who had "merely" done legal work.
The accusations in the Spanish complaint shed light on why some lawyers are queasy about all this: The complaint focuses of course, on the infamous Aug. 1, 2002, "torture memo" and references the associated and mostly unreleased memoranda authorizing specific "harsh" interrogation techniques. This is not surprising: It's hard to find many practicing lawyers who will defend the legal reasoning behind the torture memo—itself long withdrawn by members of the Bush OLC.
Julian Davis Mortenson teaches constitutional law and international law at Michigan Law School.