News certainly travels fast, sometimes. While it took the U.S. government two years to reply to a request by a Spanish judge regarding whether or not the U.S. has instigated any investigations or proceedings against six high-level Bush administration figures named in a complaint by the Association for the Dignity of Spanish Prisoners (see PDF), and it took another three weeks to get the response distributed to the parties involved, and yet another three weeks to have the news of this response released to the world at large, it took less than 24 hours to learn that the entire case was dismissed by the Spanish judge on Wednesday.
In effect, Judge Eloy Velasco sent the case back to the U.S. at the request of the Department of Justice, who argued in their March 1, 2011 letter to the judge that the U.S. is plenty interested in investigating and prosecuting torture and other war crimes. Besides the cases of CIA contractors David Passaro and Don Ayala (Marcy Wheeler discusses the Passaro case here), assorted Defense Department prosecutions of “bad apple” abusers, and the lingering Durham investigation, the U.S. representation cannot dredge up any significant criminal investigations — except one (if it is one).
The letter rogatory to the Spanish court refers to “pending federal investigations by the United States Attorneys’ Office for the Eastern District of Virginia” on “various allegations of abuse of detainees.” (p. 3-4 of letter) In addition the letter refers to “pending status and legal restrictions on the disclosure of investigative information, including rules of grand jury secrecy”. Since there has been no previous reports on current grand jury proceedings in the Eastern District on detainee abuse that I know of, is this a reference to the former cases since sent from the Eastern District by Attorney General Holder in 2009 for review by special prosecutor John Durham? Or is this something new? Have some of the cases under preliminary review by Mr. Durham now reached full investigation status?
DoJ Keeps Mum on Virginia “Pending” Investigation
In response to such questions, Dean Boyd, spokesman for the National Security Division at the Department of Justice replied to me today, “There is nothing further I can provide to you on this matter beyond what is in the document.”
Since the U.S. representation to the Spanish court was meant to convince the judge that the U.S. was serious about seeking investigations and prosecutions regarding torture, it is important to know whether a new stage in the otherwise dilatory investigations by the Obama administration, who famously has announced it would rather look forward and not backwards when it comes to investigating torture, has been hereby announced, or whether this was a con job by DoJ, describing the Eastern District grand jury as somehow still in play, when in reality, its actions on detainee abuse are non-existent, waiting for some determination of the review by Durham and his office.
Durham’s review has also been going on for over a year and a half now. But it was last June when, according to an article at Main Justice, Attorney General Holder said in remarks at the University of the District of Columbia Law School, that Durham was near the end of his preliminary review, and ”close to the end of the time that he needs and will be making some recommendations to me.” Did those recommendations include a referral back to the Eastern District for investigation and prosecution of those cases? According to the article, “several Justice officials cautioned that although Durham is nearing completion, it may take weeks or months to absorb his findings and decide what steps, if any, to pursue next.”
In a rebuttal letter to the U.S. response, the Center for Constitutional Rights (CCR), which has been championing the Spanish prosecution, appears to believe the entire episode as written up in the recent March 1 letter is a smokescreen for a whole lot of nothing. CCR wrote, “The U.S. Submission tries to hide behind the secrecy aspects of the grand jury proceedings to suggest that this investigation is a robust investigation into detainee abuse. It is notable, however, that the United States government has not spoken of any investigation in Virginia when discussing US investigations into US torture…” (PDF).
It must be galling to those looking to the Spanish court, and the hard workers at CCR especially, to see Judge Velasco so quickly take U.S. guarantees of sincerity as good coin. The U.S. had told the court, “The United States will continue to address allegations of abuse by its personnel, at home and abroad, and therefore believes it is appropriate for the Spanish courts to refer complaints related to such matters to the United States for appropriate review and action.”
CCR responded, noting the Obama administration policy of impunity for torture among mid-level and high-ranking government figures:
Through its actions and inactions, the U.S. clearly has demonstrated its unwillingness to exercise its jurisdiction to investigate and prosecute the named defendants for serious violations of international law. To refer this investigation from Spain to the United States would be to knowingly transfer this case to be closed.
Those following the torture scandal will find high irony in the U.S. claims that the DoJ Office of Public Responsiblity (OPR) and Senate Armed Services Committee (SASC) investigations, into DoJ Office of Legal Counsel malfeasance on the torture memos and on the origins and spread of the DoD torture program, respectively, are somehow indicative of U.S. good faith on investigations. The OPR report found government attorneys John Yoo and Jay Bybee to be guilty of “professional misconduct,” only to have DoJ Associate Deputy Attorney General David Margolis downgrade the OPR decision. The SASC investigation found the torture at Abu Ghraib, Guantanamo and elsewhere to be the responsibility not of “bad apples” in the military, but of high officials who promoted a program of torture and detention abuse.
It seems unlikely that the Durham investigation is actually going to bear any fruit, or that a grand jury investigation on detainee abuse is actually underway in Virginia. Sooner or later, we will know the truth. But whatever it is, the actions and policy of the Obama administration won’t fundamentally change, as high officials, such as those identified in the Spanish case — David Addington, Jay S. Bybee, Douglas Feith, Alberto R. Gonzales, William J. Haynes, and John Yoo — are not in any danger of prosecution. The U.S. has made that clear numerous times, and most lately in the response to the Spanish judge.
Update, Thursday morning, 7:25 PDT,: Center for Constitutional Rights released a statement today regarding Velasco’s dismissal of “this politically charged case,” noting that the U.S. made it clear in it’s statement that “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.”
“This decision is a cowardly political act by a judge afraid to pursue justice under his country’s own laws. He is hiding behind the fig leaf of the U.S.’s scant seven-page response, but the submission made clear the U.S. has no intention of investigating these crimes or holding higher-level officials accountable for torture. As we saw from the WikiLeaks cables, the U.S. has been pressuring Spain to drop the case and interfering with the independence of judges. A second U.S. torture case remains open in Spain after a higher court ruled it should continue on February 25. Judge Velasco asked for opposing views but then issued his decision without even looking at our detailed submission refuting the U.S. claims. We will fight this decision and continue to demand accountability for torture.”




34 Comments

As I did at EW’s post, I’m going to quote something I wrote back when the Mitchell Texas complaint was dismissed:
Just another smokescreen. Nothing to see here. Move along.
Oh! All this smoke explains why I’ve had such a bad cough, lately!
Ugh.
Can we think of a better name for the Department of Justice?
Department of Newsspeak comes to mind.
Thanks, Jeff. Your dedication on such a thoroughly and depressing subject and its latest developments is very much appreciated.
Depressing but not surprising.
The reason I felt I had to address, and not just dismiss casually, the lies in this U.S. rogatory letter is precisely because I knew it would be taken up as good coin by the mainstream press.
Here’s a bit from a Forbes article on the Spanish judge’s decision today:
Yes, but the U.S. misrepresented those investigations, not least in the representation concerning “pending” investigations, complete with grand jury secrecy, in Eastern Virginia.
If only the MSM were less credulous, and did their job of investigating the news, rather than repeating the government’s line.
But I’m preaching to the choir here, eh?
Reading back, the Spanish court took the investigation from Baltasar Garzon and handed to Eloy Velasco, after I’m sure, EL Supremo Obama pressured the Spanish with similar inquisitions we subject our prisoners to if they didn’t drop the case.
Yes, why can’t we have a better media?
Oh, wait — we do, it’s you! Thanks, Jeff.
Yes, we should not forget at all the recent State Dept cables released via Wikileaks that documented the U.S. pressures brought to bear on Spain and elsewhere (e.g. Germany). FDL’s own David Dayen wrote about this last December, a kind of round-up of reporting and commentary on the issue.
Quoting Scott Horton on this:
Ministry of Love?
Hmmmm, let me see…
Con job to make the public (and perhaps the Spanish Judge) think our gubmint is actually going to hold some accountable, or for real, no bullshit, things are actually moving.
Yeah, that’s really hard to guess based on the last two years.
If someone even has to ask the question, they haven’t been paying attention.
And what a bullshit excuse to.
Because the Bush admin executive officials acted based on advice from OIC.
That is BULLSHIT. That sets up exactly how to do anything illegal in any future executive. Hire a willing attorney for OIC that advise anything at all is legal, then claim you can’t prosecute those doing the deeds because they were advised it was legal.
My gosh, I’m not even a lawyer and I can see through this. How the hell do any real lawyers go along with this??? It seems to me the BAR of every state ought to be against this bullshit reasoning.
Dammit, I swear if we just hold folks accountable for their actions, an awful lot, I mean probably MOST, of our problems would improve if not end altogether.
But as long as any group of people are told they can act without fear of any accountability, then you can bet the farm it’s a matter of when, not if, they act illegally, immorally, and possibly even violently.
The US Intelligence-Agencies-Pentagon torture regime system has rolled on from foreign citizens to US citizens, Bradley Manning being a known case in point, with impunity and with the full support of Obama personally together with myriad Administration officials too numerous to list, many of them operating clandestinely under cover.
And the next step for our ruling Wall-Street-Intel-Pentagon Junta? Extension to “those who support causes, ideas, and/or groups deemed to be AGAINST THE NATIONAL INTERESTS OF THE UNITED STATES?”
OR, if you really want to go there, and give folks serving a pass if they act in good faith believing what they’re doing is legal based on advice from gubmint lawyers, then any gubmint lawyers that give such advice should be held accountable with a minimum sentence of 25-30 years. No parole.
Bet that’d stop the fucking lawyers from giving such advice in the future. As long as, you know, you actually backed it up. If a lawyer gives advice that an illegal act is legal, and someone acts illegally based on that advice, then that lawyer goes to prison a MINIMUN of 25 years.
Guarantee you that would end it. And I also guarantee you if neither the folks that do the deeds or the lawyers giving them bad advice are held accountable, then the illegal acts of the past two administration are going to look like choir boys compared to future administrations.
I guess Department of Injustice is too obvious??
I thought of it, too. Obvious, but not a bad choice. Not lulling enough, though, so no good for Orwellian purposes.
I think there are a number of people in government who already think this way. We are in the middle of that “next step” process. I’m hoping it can be turned away, but I’m afraid the course of events are leading to a time of even greater confrontation, though I’m agnostic about how that might look exactly (greater political repression and erosion of rights will be part of it; I’m hoping greater social struggle and mass participation in the political process will also result).
Department of Crime wouldn’t be Orewellian enough either, since it would be accurate.
BTW that wasn’t a slam at JK. IMO he stated pretty clearly he knew the real deal too, and provided good context as to why, citing the CCR.
The “political process” in the US has been transformed, rather rapidly, to attacks by the ruling clique on the poor and middle class, much more rapidly than I would have expected only a few years ago. With the “budget deal” passed today in our Potemkin Village, one Party Congress, the poor took the biggest hit by far. So to me our situation is like a huge war battle with the poor and most defenseless citizens on the front line taking the heaviest fire.
Second echelon are the middle class who also took an unknown amount of fire, as yet to be fully discerned, given Obama’s penchant for a Nixonesque mode of using maximum secrecy in his dealings, keeping details under cover for as long as possible.
Our governance has become at least 90% Orwellian.
I am so impressed with this post and with you, Jeff. Thanks. Now I’m going to sit in the bathtub and cry.
This statement by the US government that it is investigating the legal basis of torture issue is certainly a boldface lie. This should leave the current administration open to obstruction of justice charges by the international community.
“. . . the U.S. is plenty interested in investigating and prosecuting torture and other war crimes.”
But no so interested in actually putting an end to these activities.
“various allegations of abuse of detainees.”
How serious can the attorney’s office be–or the USG in general–if they can’t even utter the word torture?
Bank on it.
A local example from Kansas: Gov. Brownback’s new budget cuts $50 million from state funding for public schools (and Kansas isn’t known for the quality of their schools, anyway), which amount to 90% of the total budget cuts. At the same time, he raised the cap on what AT&T could charge customers.
The willingness of so many people to trade away the tangible things that directly affect the quality of their lives in exchange for fleeting, pretentious abstractions is stunning. “Well, it’ll cost me more to live next year and my kids’ education is going down the toilet, but at least Brownback believes in God, white folks and the American Dream.” In-fucking-deed.
Department of Unequal Justice is more like it.
Attorneys perhaps have at least a slightly greater desire (I won’t say interest in) believing in the rule of law.
Ultimately its rule of law or rule by arbitrary men. At that is true at the international level as much as at the national level and on down.
Thanks for your continuing interest in this topic. There aren’t many voices left. When I searched for reports on this story under the name of the Spanish judge I found that most newspaper accounts in Canada and Australia are just word for word repeats. There is very little anaylsis done.
The rule of law and human rights thus slowly get leveraged away because democracies spread across separate national body politics can’t hold the big picture important issues in the minds of sufficient citizens. Laws are not self enforcing. Obama, Holder, Pelosi etc and many others putting personal career above the right thing to do, move all of humankind on alright, but it is not on towards a place we want to go. Its on towards totalitarian global government rather than democratic global government.
I think its smokescreen. Obama (seeking re-election) and Holder are putting their own careers first.
There is no enduring national interest in moving on without a rule of law.
If Presidents aren’t impeached when they should be (because of political decisions like Pelosi’s to prepare the way for a Democratic president) and laws against aggressive invasion, torture, spying on citizens aren’t upheld, then there is not really any coherent nation left for a citizen to believe in. There is just the arbitrary exercising of power by arbitrary men.
Politics trumps law and everything, including extralegal action, goes onto the table for operators in such a situation because the rule of law is in fact just farcical cover.
When the rule of law is manifestly obviously not upheld on aggressive invasion and torture carried out by the US government (or unaccountable agents of it) then every action against the US government (as an impediment rather than champion of human rights based on rule of law) becomes morally legitimate.
In today’s U.S., “Department of Justice” is appropriately Orwellian, as its name is the opposite of what it does.
“Totalitarian global government” is not so simple a thing to create. Behind even the inert political process in the U.S. stands the reality of exploitative class relationships, and the legacy of past struggles that still live on in the unconscious memory of millions of people. Culture is not without its own power.
We’re not there yet, and some major battles, far larger than what we’ve seen thus far, lie ahead before we enter that territory. This is not, of course, to downplay the seriousness of the current situation, and the injustices and crimes levied against many people already.
“It must be galling to those looking to the Spanish court, and the hard workers at CCR especially, to see Judge Velasco so quickly take U.S. guarantees of sincerity as good coin.”
Spain’s economy has been precarious. I can’t help wondering if we threatened to screw it up worse if they didn’t drop the torture case, or promised to help if they did.
Department Of Iniquity? Department Of Justice Withheld?
We could even keep the same initials: ‘Devout Order of the Joker’. Their motto already seems to have changed to “Why so serious?” So that will be painless for them at least.
Devourers Of Justice? Defecate On Justice? Department Of Judas? I could go all day.
We could even toss one on for the Star Wars fanbois: ‘Den Of Jawas’. (They never like to show their faces, they reek of corruption, and they can never seem to keep their grubby little mitts out of the precious goods.)