Spanish Investigators Push Justice Department On Torture Role; How Will Holder Answer?

Two investigating judges from the Spanish national security court,
the Audiencia Nacional, are asking the U.S. Justice Department for
details about the role played by Bush Administration lawyers in the
development and approval of torture practices that were apparently
applied to a number of Spanish subjects held in Guantanamo.

The judges have asked for responses by the end of October, setting
up another major test for Attorney General Eric Holder. This time, the
question is whether Holder will choose to oblige or stymie
international criminal investigations of Bush officials for torture, in
the absence of any domestic efforts in that direction.

Holder has thus far threaded the needle between torture critics and
torture apologists by launching a narrowly tailored preliminary inquiry
into a small group of incidents that exceeded Justice Department
guidances in place at the time.

Had he launched a more wide-ranging investigation, the Spaniards
would almost certainly have abandoned theirs, which is based on the
principle of universal jurisdiction when it comes to such things as war
crimes.

The Spanish authorities are deciding whether to continue with a
criminal investigation targeting the so-called Gonzales Six -- former
attorney general Alberto Gonzales; former Justice Department officials
Jay Bybee (now a judge on the Ninth Circuit Court of Appeals) and John
Yoo (now a law professor in Berkeley, California); David Addington, the
former chief of staff to vice president Cheney; former undersecretary
of Defense for Planning Douglas Feith, and former defense department
general counsel William J. Haynes II (now a lawyer with Chevron).

The two separate cases involve Judges Eloy Velasco and Baltasar
Garzon and arise out of related facts -- one coming of out of a
complaint brought by a Spanish human rights organization on behalf of
abused Spanish nationals held at Guantanamo, the other stemming from a
failed effort by Judge Garzon to prosecute those same prisoners. A
conviction initially secured by Judge Garzon was overturned in a later
decision of the Spanish Supreme Court, which found substantial evidence
that the prisoners had been tortured. The Spanish Supreme Court labeled
Guantanamo a "legal black hole," forbade Spanish prosecutors to rely on
evidence secured by American interrogators there and directed a more
detailed investigation into the prisoner's claims that they had been
tortured.

In the course of the last week, I interviewed a number of figures
involved in these two cases in Madrid, including lawyers practicing
before the Audiencia Nacional and court investigators, in order to get
a sense of their likely trajectory. I learned that the two judges were
closely monitoring developments in the United States, and particularly
Holder's decision to appoint career prosecutor John Durham to conduct a
preliminary inquiry into a group of ten or more incidents in which the
CIA's inspector general concluded that the conduct of CIA interrogators
exceeded the guidelines they were given by the Justice Department.

Under Spanish law, the opening of a criminal investigation covering
the same matters by the United States would probably lead to the
termination or suspension of a case in Spain grounded on universal
jurisdiction. However, the Spanish authorities tentatively concluded
that suspension of their cases was not warranted at this point because
Holder had placed so many limitations on Durham's work and because it
does not appear that Durham is being asked to examine the cases
involving the Spanish subjects who were held at Guantanamo.

Judges Garzon and Velasco are also clearly focusing their inquiries on
the roles played by the Gonzales Six, whereas Holder appears to have
structured the Durham probe to limit any investigation into the role
that Justice Department lawyers and others played in the matter. The
Spanish authorities will probably reassess if the Durham preliminary
review leads to a more formal criminal investigation. If they conclude
that Durham is also examining the potential culpability of the Gonzales
Six, that would likely lead to a suspension of the Spanish proceedings.

The Spanish investigators are now hoping for detailed responses to the
questions they sent the U.S. Justice Department in the form of "letters
rogatory" -- the customary method of obtaining judicial assistance from
abroad in the absence of a treaty or executive agreement. The questions
focus on the treatment of the Spanish subjects held at Guantanamo and
the specific authority and approval for that treatment. They also probe
in more detail into the role played by Gonzales, Bybee and Yoo in the
process, reflecting a view that the U.S. Justice Department was itself
the locus of much of the criminal conduct connected to introduction of
a system of torture and cruel treatment of Spanish subjects, in
violation of the Spanish criminal code using its universal jurisdiction
arm.

The government of Spanish Prime Minister Jose Luis Zapatero, which
has held confidential discussions with the Obama Administration, has
strongly opposed the inquiries. Spanish Attorney General Candido
Conde-Pumpido, a member of Zapatero's cabinet, instructed his
representatives attached to the Audiencia Nacional to seek their
termination. On April 17, Conde-Pumpido gave a press conference at
which he ridiculed suggestions that attorneys could face any liability
for torture, saying that only those who were present in the room when
the torture occurred faced liability. However, in Spain, unlike the
United States, criminal investigations are pursued not by the attorney
general and his staff, but by judges who are independent of political
structures. Neither of the two judges has, so far, agreed with
Conde-Pumpido's position. Moreover, his analysis of potential liability
for torture was squarely rejected in one interim decision of the court,
which concluded that legal culpability for torture rested principally
with the "intellectual authors" of the program, rather than those who
administered the program.

The Zapatero government, with support from its political opposition,
recently steered legislation through the Spanish parliament modifying
Spain's universal jurisdiction statute to limit the sorts of foreign
cases that the Audiencia Nacional could handle. The legislative change
does not, however, affect the proceedings involving the Gonzales Six,
since cases in which Spanish subjects are victims of torture remain
within the core competence of the court, regardless of where the acts
of torture occurred or whatever other governments may have been
involved.

On Saturday, the Spanish newspaper El Publico
reported that Judge Garzon had agreed to expand his case by admitting a
number of human rights organizations and a political party as parties
who would have a right of participation in any trial. Huffington Post
blogger Andy Worthington offered a summary of the Publico piece with some updates.

It is unclear how the Holder Justice Department will react to the
Spanish court's request. Lawyers attached to the Audiencia Nacional
state that during the Bush years, the U.S. Justice Department was not
forthcoming in answering requests for information, even with respect to
counterterrorism prosecutions the Spanish undertook with U.S.
prompting. Holder, noting that this concern was broadly expressed by
European law enforcement authorities, has pledged in several
appearances in Europe to introduce a new spirit of cooperation with the
European on counterterrorism matters. However, the case of the Gonzales
Six presents an unusual challenge since former personnel from the
Justice Department are clearly in the prosecutorial cross-hairs.

Spanish authorities expressed particular puzzlement over Holder's
decision not to release a study prepared by the Department's Office of
Professional Responsibility that looks into the conduct of Yoo, Bybee
and their successor, Steven G. Bradbury. This report has been
five-years in the making. "This report probably contains a good deal of
the information that is being sought in the interrogatories," one court
investigator told me.

British law professor Philippe Sands, whose expert testimony was a
key factor in the Audiencia Nacional's initial decision to accept the
case involving the Gonzales Six, takes the view that the Spanish cases
will now go forward. Sands told me:

The effect of Mr Holder's important first decision to
appoint a special prosecutor on a limited number of cases involving the
CIA means that there will not be, for the time being at least, any sort
of investigation (as required by the Torture Convention), of the real
authors of the abuse, including the lawyers. Ironically, the decision
means that those who made implicit threats with drills that were never
used may be investigated, whereas those who authorized, ordered or
carried out waterboarding, sexual humiliation, stress positions and the
use of dogs will not be. Hardly a logical approach, and not exactly
consistent with the scheme under the Convention.

That's a bright green light for continued foreign investigations. I
have no doubt that the DoJ will, in due course, do the right thing and
respond to the letters rogatory. What the response might contain,
however, is a matter of some interest.

For the moment, however, the attention is focused on the U.S.
Justice Department. Will it treat the Spanish criminal investigation
seriously? Or will it continue the Bush Administration's practice of
turning a cold shoulder to any such queries? It is, yet again, a
question of change versus continuity.