Legal News

?Bush Six? Get Some Love From the Spanish AG

By Ashby Jones

It’s still probably not entirely safe for Alberto Gonzales and five other former Bush administration officials to book summer travel plans to Barcelona. But this morning, it appeared to get a little bit safer.

Earlier today, Spain’s attorney general, Candido Conde Pumpido (pictured), overruled the decision of Spanish prosecutors to adopt a criminal complaint against the six former officials — former Attorney General, former Assistant AG Jay Bybee, UC Berkeley law professor and former Deputy Assistant Attorney General John Yoo, former Defense Department general counsel and current Chevron lawyer William J. Haynes II, Vice President Cheney's former chief of staff David Addington, and former Undersecretary of Defense Douglas J. Feith.

Earlier this week, Spanish prosecutors decided to proceed with a criminal case against the group, alleging that they were was responsible for creating the regime at Guantanamo Bay, Cuba, that condoned harsh interrogation techniques, including torture. Click here for the story, from writer and law professor Scott Horton, writing today in the Daily Beast; click here for the AP’s story.

As Horton reports, however, the decision by Spain’s AG does not mark the end of the case. It now goes back to Judge Baltasar Garzon, who had originally launched the case and must decide whether it will go forward notwithstanding the Spanish attorney general's call. In the Spanish criminal-justice system, the decision as to whether a criminal prosecution will go forward rests with the judge-not with the prosecutors or the attorney general.

But for now, it appears the momentum has slowed, at least a bit. Gonzalo Boye, one of the human rights lawyers who brought the case, made a point of saying he was going after the Bush administration’s senior lawyers and advisers — not the rank and file military and intelligence agents who may have carried out the abuse.

But prosecutors apparently didn’t buy that argument. Conde Pumpido stated that any torture investigation should focus on those directly engaged in implementing torture techniques, rather than the lawyers who issued legal opinions. "We cannot support this action," he stated.

Spanish law gives its courts jurisdiction beyond national borders in cases of torture or war crimes, based on a doctrine known as universal justice. If an indictment had been issued, it would have cleared the way for international arrest warrants, and — in theory, at least — extradition to Spain.

Click here for a recent WSJ opinion piece from Feith himself. Wrote Feith:

The allegation is not that any of us tortured anyone. And it is not that any of us even directed anyone to commit torture. The allegation is that, when we advised President George W. Bush on the Geneva Conventions and detainee interrogations, our interpretations were wrong — in the view of the disapproving Spaniards. According to the complaint, these wrong interpretations encouraged the president to make decisions that led to torture.

The Spanish magistrate apparently believes that it can be a crime for American officials to offer the wrong kind of advice to a president of the United States and, furthermore, it can be a crime punishable by a Spanish court. This is a national insult with harmful implications.

Full post as published by Law Blog - WSJ.com on April 16, 2009 (boomark / email).