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.

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.

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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.

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.

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.

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