With the DOJ’s failure to prosecute the Bush Six and other torturers, Spain has a legal obligation to ensure impunity does not cross borders

Guantanamo Bay (Photo: US Army / Flickr)

It has become abundantly clear that the U.S. government has no intention to prosecute anyone within its ranks for the Bush administration’s torture program. This unwillingness underscores the urgent need for other countries to act on behalf of the global community and ensure these officials face justice. In the next couple of months, Spain will have the opportunity to do precisely that.

Ten years after the infamous ‘torture memos’ and with no prosecutions of any high-level U.S. officials, any remaining doubts about the United States’ commitment to addressing the abuses of the Bush era were put to rest by the recent announcement from the Justice Department that it would not charge anyone involved in the torture of over 100 men held in CIA-run prisons overseas, and the deaths of two men in custody.

Back in 2009, securing the outcome of this investigation before it even opened, Attorney General Eric Holder emphasized that the DOJ would not prosecute “anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”  By placing this ‘legal guidance,’ a euphemism for the infamous torture memos, outside the scope of any investigation, Holder effectively ensured that no government personnel – from the Bush administration lawyers who approved the torture program to those who implemented it – would be prosecuted for state crimes.

But the United States’ failure to investigate and prosecute its own officials’ acts of torture does not mean that these crimes will go unpunished—or that impunity will prevail.

In Spain, there is currently one open criminal investigation into the U.S. torture program.   While it is proceeding slowly, this case has a broad mandate: to examine “an authorized and systematic plan of torture and ill-treatment on persons deprived of their freedom without any charge and without the basic rights of any detainee, set out and required by applicable international conventions.”

And last month, human rights advocates urged the Spanish Supreme Court to reopen the investigation against the six lawyers from the Bush administration who were the architects of the torture program and who sought to give legal cover to other U.S. officials for their involvement.  The Spanish court closed the case against the so-called “Bush Six” in April 2011, after the U.S. government asked Spain to defer jurisdiction, claiming it would look into the allegations.

An unprecedented coming together of international human rights experts and organizations, led by the Center for Constitutional Rights (CCR) and the European Center for Constitutional and Human Rights (ECCHR), asked the Spanish Supreme Court to simply look at the ten-year record of impunity that attests to the fact that the U.S. has not and will not investigate the Bush Six. Among those joining this call were Major General Antonio M. Taguba, author of the Taguba Report, three former UN officials, and a former Chief Prosecutor for the U.S. military commissions at Guantánamo Bay. The message they sent was clear: it is essential that Spain fulfill its legal obligations under the Convention Against Torture by asserting jurisdiction over these crimes.

Indeed, Spain, with its legacy of providing justice to victims of egregious human rights violations when other countries have closed their doors, such as in the case against Augusto Pinochet, is the appropriate venue to hear the Bush Six case.

The case in Spain is one of the many international efforts to hold U.S. officials accountable for torture and other war crimes.  Because of the U.S. record of impunity, human rights advocates and torture survivors have taken their fight to France, Germany, Switzerland, and Canada, seeking to bring former U.S. officials to justice. The crimes they are alleged to have committed are violations of international law – and so seeking justice globally is appropriate.

As torture and indefinite detention become further institutionalized in the U.S., these efforts at accountability under universal jurisdiction are more important than ever.

U.S. cables released by Wikileaks confirmed the U.S. government has engaged in behind-the-scenes political campaigns to discourage or block other governments from investigating these state crimes. CCR and ECCHR have challenged these attempts. The fact that the U.S. government has gone to such lengths further underscores the need for an independent investigation into the Bush administration’s torture program.

In the coming months, we will know whether Spain will build on its legacy of upholding its obligations under universal jurisdiction to investigate and prosecute crimes against humanity when countries like the U.S. are unwilling to do so. Only through such global efforts can the world community ensure there is no double standard for justice and that there is no safe haven for torturers.

By Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights

Guantanamo Bay (Photo: US Army / Flickr)