Obama Administration to Spanish Judge: We Won't Investigate Bush Lawyers' Role in Torture

After a two-year delay punctuated by efforts to undermine the Spanish judiciary's independence, the Obama administration recently told a Spanish court that they have no intention of investigating six former Bush administration officials for their part in creating a legal framework that permitted the torture of detainees held in U.S. custody. The named defendants in the case are torture memo authors Jay Bybee and John Yoo, and David Addington, Douglas Feith, William Haynes and Alberto Gonzales.

In a seven-page submission in response to a request from Judge Eloy Velasco of the Audencia Nacional, the U.S. clearly demonstrated that it is not investigating or prosecuting the allegations and charges set forth in the March 2009 criminal complaint. Under Spanish law, Spain shall pursue a case when no other competent jurisdiction has initiated an effective investigation and prosecution into the punishable acts.

"Now that the Obama administration has made it plain it will not exercise its jurisdiction over very serious and well-documented allegations of torture, it is incumbent upon Judge Velasco to act," said Katherine Gallagher, a senior attorney at the Center for Constitutional Rights. "His is the court of last resort for the victims of the Bush administration's torture program."

The U.S. was able to cite evidence only that it is capable of investigating and prosecuting the serious mistreatment of detainees, including administrative investigations or the prosecutions of two civilian contractors, but no evidence that it has, in fact, undertaken such investigations or prosecutions against mid or high-level U.S. officials. Indeed, the U.S. submission clearly states, "the Department of Justice has concluded that it is not appropriate to bring criminal cases with respect to any other executive branch officials, including those named in the complaint, who acted in reliance on [Office of Legal Counsel] memoranda during the course of their involvement with the policies and procedures for detention and interrogation."

"It is profoundly disappointing that, as a matter of policy, the Obama administration has acted to protect the architects of a torture program that it was quite happy to attack when it was in campaign mode," said CCR President Michael Ratner. "Remarkably," he added "this administration has embraced a policy of impunity, acting in lockstep with its predecessor to forestall accountability. It is not only shameful, it violates our international obligations and is contrary to our domestic laws as well."

The case began in March, 2009 when a complaint was filed against six former officials alleging violations of international law, including war crimes and torture. In May 2009 and again in April 2010, Judge Velasco issued formal requests to the United States seeking information regarding any pending investigations in the U.S. that would render the Spanish complaint unnecessary. In October 2010, Judge Velasco issued an order in which he noted the "urgency of compliance" with his earlier requests to the U.S. The Obama administration repeatedly ignored the request, while, as the WikiLeaks cables reveal, they acted to undermine the legal process through political means and disregarded the independence of the Spanish judiciary. In January 2011, Judge Velasco issued a final order for compliance, setting a March 1 deadline for the U.S., to which the Department of Justice finally replied. The Office of International Affairs within the Criminal Division of the U.S. Department of Justice submitted the U.S. views to Judge Velasco.

"The position under European law is quite clear", said Gavin Sullivan, lawyer with the European Center for Constitutional and Human Rights (ECCHR), "administrative and professional misconduct proceedings are patently inadequate means of effectively investigating serious criminal allegations such as torture."

Today, CCR and ECCHR issued a public response to the U.S. submission, available here.

The U.S. submission is available here in English and here in Spanish.

A document summarizing the public response is available in English and Spanish on the CCR case page here.

CCR and ECCHR have filed three joint expert opinions in the "Bush Six" case, including one setting out the legal framework for holding government lawyers, such as the defendants, liable for violations of international law, and two in which the groups detailed the Obama administration's efforts to ensure impunity, not accountability, for former U.S. officials, including by exerting pressure on Spanish government officials to have these cases dismissed. Both organizations are also involved in a second criminal investigation pending in Spain related to the U.S. torture program, brought on behalf of released Guantanamo detainees. In January, CCR and ECCHR asked another Spanish judge to subpoena the former commanding officer at Guantanamo Bay, Geoffrey Miller, to explain his role in the torture of four former detainees.

For more information on the investigations of U.S. torture pending in Spain, see: https://ccrjustice.org/ourcases/current-cases/spanish-investigation-us-torture. For more information on CCR and ECCHR's work to hold U.S. officials accountable using universal jurisdiction, see: https://www.ccrjustice.org/case-against-rumsfeld and https://www.ecchr.org/index.php/us-accountablity/articles/rumsfeld-torture-cases---criminal-charges-filed.html