A high-level Spanish court has taken the first steps toward opening a criminal investigation against six former Bush administration officials, including former Attorney General Alberto R. Gonzales, on whether they violated international law by providing a legalistic framework to justify the use of torture of American prisoners at Guantanamo Bay, Cuba, said an official close to the case.
The case was sent to the prosecutor’s office for review by Baltasar Garzon, the crusading investigative judge who indicted the former Chilean dictator Augusto Pinochet. The official said that it was “highly probable” that the case would go forward and could lead to arrest warrants.
While the move represents a step toward ascertaining the legal accountability of top Bush administration officials for allegations of torture and mistreatment of prisoners in its so-called war on terror, some American experts said that even if warrants are issued their significance could be more symbolic than practical, and that it was likely that they would not lead to arrests if the officials do not leave the United States.
The complaint under review also names John C. Yoo, the former Justice Department lawyer who wrote secret legal opinions saying the president had the authority to circumvent the Geneva Conventions, and Douglas J. Feith, the former under secretary of defense for policy.
The move was not entirely unexpected as several human rights groups have been asking judges in different countries to indict Bush administration officials. One group, the Center for Constitutional Rights, had asked a German prosecutor for such an indictment, but the prosecutor declined.
Judge Garzon, however, has built an international reputation by bringing high-profile cases against human rights violators as well as international terrorist networks like al-Qaeda. His issuing of an arrest warrant for General Pinochet led to his arrest. He has also been outspoken about the treatment of American detainees at Guantanamo Bay.
Judge Garzon has been able to take jurisdiction of such high-profile cases because of a 1985 law that gives Spanish courts “universal jurisdiction” in crimes against humanity if they can be linked somehow to Spain.
In the case against the former Bush administration officials, last week Judge Garzon linked it to an earlier case in which he indicted five former Guantanamo Bay prisoners who were citizens or residents of Spain. The Spanish Supreme Court had overturned a conviction of one of them, saying that Guantanamo was “a legal limbo” and no evidence obtained under torture could be valid in any of the country’s courts.
The complaint was filed by a Spanish human rights group, the Association for the Dignity of Prisoners, to the National Court, which assigned the case to Judge Garzon. After the complaint is reviewed by the prosecutor, a criminal investigation would be likely to begin, said the official. If the case proceeds, arrest warrants could still be months away.
The 98-page complaint, a copy of which was obtained by the New York Times, was prepared by Spanish lawyers who have also relied on legal experts in the United States and Europe. It bases its case on the 1984 Convention Against Torture, which is binding on 145 countries including the United States.
Gonzalo Boye, the Madrid lawyer who filed the complaint, said that the six Americans cited had had a well-documented role in approving illegal interrogation techniques, redefining torture and abandoning the definition set by the 1984 Torture Convention.
Secret memorandums by Yoo and other top administration lawyers helped clear the way for aggressive policies such as waterboarding and other harsh interrogation techniques, which human rights groups say amount to torture.
The other Americans named in the complaint were William J. Haynes II, former general counsel for the Department of Defense; Jay S. Bybee, Yoo’s former boss at the Justice Department’s Office of Legal Counsel; and David S. Addington,who was the chief of staff and legal adviser to Vice President Dick Cheney.
Yoo declined to comment on Saturday, saying that he had not seen or heard of the petition.
The other former officials either could not be reached on Saturday or did not immediately respond to requests for comment. Their defenders have said their legal analyses and policy-making on interrogation practices, conducted under great pressure after the 2001 terrorist attacks, is now being unfairly second-guessed after many years without a terrorist attack on the United States.
Boye, however, said that lawyers should be held accountable for the effects of their work. “This is a case from lawyers against lawyers,” he said. “Our profession does not allow us to misuse our legal knowledge to create a pseudo-legal frame to justify, stimulate and cover up torture.”
He said that Spanish citizens were tortured and Spain, as a signatory of the Torture Convention, was obliged to pursue such a case.
Prosecutions and convictions under the Torture Convention have been rare. In recent years, France has convicted a Mauritanian and a Tunisian citizen and the Netherlands convicted a military officer from Congo.
Reed Brody, a lawyer at Human Rights Watch who has specialized in this issue, said that even though torture was widely practiced, there were numerous obstacles, including “a lack of political will, the problem of gathering evidence in a foreign country and the failure of countries to pass the necessary laws.”
The United States for the first time this year used a law that allows for the prosecution in the United States of torture in other countries. On Jan. 10, a Miami, Florida, court sentenced Charles Taylor, the former Liberian leader, to 97 years in a federal prison for torture, even though the crimes were committed in Liberia.
Last October, when the Miami court handed down the conviction, Attorney General Michael B. Mukasey applauded the ruling and said: “This is the first case in the United States to charge an individual with criminal torture. I hope this case will serve as a model to future prosecutions of this type.”
While the United States would be expected to ignore an extradition request for former officials, other investigations within the United States have been proposed. For more than four years, the Justice Department ethics office has been investigating the work of Yoo and some of his colleagues.
While the officials named in the complaint have not addressed these specific accusations, Yoo defended his work in an opinion column in the Wall Street Journal on March 7, warning that the Obama administration risked harming national security if it punished lawyers like himself.
“If the administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today’s intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future,” wrote Yoo.
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