Ex-Bush officials may be indicted in Spain this week for torture

The Public Record:

Human rights organizations and legal scholars are applauding the efforts of Spanish lawyers in seeking the indictment of six former officials of the administration of President George W. Bush in connection with the torture of detainees at the U.S. military's Guantanamo Bay prison.

Spanish prosecutors may decide this week whether to proceed with an investigation. The prosecutors were asked to review the case by Baltasar Garzon, the crusading investigative judge who ordered the arrest of the former Chilean dictator Augusto Pinochet in 1998.

The official said that it was “highly probable” that the case would go forward and that it could lead to arrest warrants.

Garzon asked for the review following a complaint filed by Spanish human rights lawyers, who could pursue the case in court even if prosecutors decide not to take it further. This occurred in the Pinochet case.

The U.S. officials involved in the investigation include former U.S. Attorney General Alberto Gonzales; John Yoo, the former Justice Department lawyer who wrote secret legal opinions saying President George W. Bush had the authority to circumvent the Geneva Conventions, Douglas Feith, the former undersecretary of defense for policy; William Haynes II, former general counsel for the Department of Defense; Jay Bybee, Yoo's former boss at the Justice Department's Office of Legal Counsel and now a Federal judge; and David Addington, chief of staff and legal adviser to former Vice President Dick Cheney.

And Marjorie Cohn, a professor at the Thomas Jefferson School of Law,
adds this:


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.

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.