A Spanish court has initiated criminal
proceedings against six former officials of the Bush administration.
John Yoo, Jay Bybee, David Addington, Alberto Gonzales, William Haynes
and Douglas Feith may face charges in Spain for authorizing torture at
Guantanamo Bay.
If arrest warrants are issued, Spain and any of the other 24
countries that are parties to European extradition conventions could
arrest these six men when they travel abroad.
Does Spain have the authority to prosecute Americans for crimes that didn't take place on Spanish soil?
The answer is yes. It's called "universal jurisdiction." Universal
jurisdiction is a well-established theory that countries, including the
United States, have used for many years to investigate and prosecute
foreign nationals for crimes that shock the conscience of the global
community. It provides a critical legal tool to hold accountable those
who commit crimes against the law of nations, including war crimes and
crimes against humanity. Without universal jurisdiction, many of the
most notorious criminals would go free. Countries that have used this
as a basis to prosecute the most serious of crimes should be commended
for their courage. They help to create a just world in which we all
seek to live.
Israel used universal jurisdiction to prosecute, convict and execute
Adolph Eichmann for his crimes during the Holocaust, even they had no
direct relationship with Israel.
A federal court in Miami recently convicted Chuckie Taylor, son of
the former Liberian president, of torture that occurred in Liberia. A
U.S. court sentenced Taylor to 97 years in prison in January.
Universal jurisdiction complements, but doesn't supersede, national
prosecutions. So if the United States were investigating the Bush
officials, other countries would refrain from doing so.
When the United States ratified the Convention Against Torture, it
promised to extradite or prosecute those who commit, or are complicit
in, the commission of torture.
President Obama, when asked whether he favored criminal
investigations of Bush officials, replied, "My view is also that
nobody's above the law and, if there are clear instances of wrongdoing,
that people should be prosecuted just like any ordinary citizen."
"But," he added, "generally speaking, I'm more interested in looking
forward than I am in looking backward." Preoccupied with the economy
and two wars, Obama reportedly wants to wait before considering
prosecutions that would invariably anger the GOP.
Evidence that Bush officials set a policy that led to the torture of prisoners at Guantanamo continues to emerge.
According to ABC News, Gonzales met with other officials in the White House and authorized torture, including waterboarding.
The Office of Professional Responsibility, which reports to the U.S.
attorney general, drafted a report that excoriates Yoo and Bybee for
writing the infamous torture memos. Haynes, Addington and Feith
participated in decisions that led to torture. The release of
additional graphic torture memos by the U.S. Department of Justice is
imminent.
It is the responsibility of the United States to investigate
allegations of torture. Almost two-thirds of respondents to a USA
Today/Gallup Poll favor investigations of the Bush team for torture and
warrantless wiretapping. Nearly four in 10 support criminal
investigations.
Former Navy General Counsel Alberto Mora told Congress, "There are
serving U.S. flag-rank officers who maintain that the first and second
identifiable causes of U.S. combat deaths in Iraq - as judged by their
effectiveness in recruiting insurgent fighters into combat - are,
respectively the symbols of Abu Ghraib and Guantanamo." Providing
impunity to those who ordered the torture will be the third recruiting
tool.
If the United States refuses to investigate now, it will be more
likely that some future administration will repeat this scenario. The
use of torture should be purged from our system, much like we
eradicated slavery.
