The Significance of HRW's New Call to Prosecute Bush Administration Officials for Torture

Cross-posted from MyFDL/Firedoglake

Human Rights Watch (HRW) released a new report Tuesday. As they stated in the press release announcing the 107-page report, "Getting Away with Torture: The Bush Administration and Mistreatment of Detainees" (HTML, PDF), there is "overwhelming evidence of torture by the Bush administration." As a result, President Barack Obama is obliged "to order a criminal investigation into allegations of detainee abuse authorized by former President George W. Bush and other senior officials."

In particular, HRW singled out "four key leaders" in the torture program. Besides former President George W. Bush, the report indicts former Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, and CIA Director George Tenet. But others remain possible targets of investigation and prosecution. According to the report:

Such an investigation should also include examination of the roles played by National Security Advisor Condoleezza Rice and Attorney General John Ashcroft, as well as the lawyers who crafted the legal “justifications” for torture, including Alberto Gonzales (counsel to the president and later attorney general), Jay Bybee (head of the Justice Department's Office of Legal Counsel (OLC)), John Rizzo (acting CIA general counsel), David Addington (counsel to the vice president), William J. Haynes II (Department of Defense general counsel), and John Yoo (deputy assistant attorney general in the OLC).

But the key passage in the HRW report concerns the backing for international prosecutions, under the principle in international law of "universal jurisdiction," which was used back in 1998 by Spanish Judge Baltasar Garzón to indict former Chilean dictator Augusto Pinochet for genocide and murder.

Unless and until the US government pursues credible criminal investigations of the role of senior officials in the mistreatment of detainees since September 11, 2001, exercise universal jurisdiction or other forms of jurisdiction as provided under international and domestic law to prosecute US officials alleged to be involved in criminal offenses against detainees in violation of international law. [emphasis added]

Indeed, in an important section of the report, HRW details the failures and successes of pursuing such international prosecutions in the face of U.S. prosecutors' failure to act and investigate or indict high administration officials for war crimes. This is even more important when one considers that the Obama administration has clearly stated its intention to not investigate or prosecute such crimes, going after a handful of lower-level interrogators for crimes not covered by the Bush administration's so-called "legal" approvals for torture provided by the infamous Yoo/Bybee/Levin/Bradbury memos issued by the Office of Legal Counsel.

Nor has Congress shown even a smidgen of appetite for pursuing further accountability: not one Congressman or Senator has stepped forward as yet to endorse HRW's new call. Instead, they demonstrated their obsequiousness by approving Obama's nomination of General David Petraeus as new CIA director 94-0, despite the fact that Petraeus has been implicated in the organization of counter-terror death squads in Iraq, and was in charge of training Iraqi security forces who repeatedly were documented as engaging in widespread torture. It was during Petraeus's tenure as chief of such training for the coalition forces, that the U.S. implemented the notorious Fragmentary Order (FRAGO) 242, which commanded U.S. forces not to intervene in cases of Iraqi governmental torture should they come across such it (which they often did). No one during Petraeus's testimony in his nomination hearings even questioned him about this.

Why this report now?

I asked Andrea Prasow, a senior counsel at Human Rights Watch, why this report was issued now, noting that some on the left had already questioned the timing of HRW's action.

"Because it really needed to be done," Prasow explained. She noted the recent admissions by former President Bush and Vice President Cheney that they had approved waterboarding. Furthermore, "following the killing of [Osama] Bin Laden, we saw the immediate response by some that torture and the enhanced interrogation techniques led to the capture of Bin Laden. And it became a part of normal debate about torture. It shows how fragile is the current commitment not to torture."

Prasow also noted the recent closure of the Durham investigation, which resulted in the decision to criminally investigate the deaths of two detainees in CIA custody, while 99 other cases referred to his office were closed. I asked her whether she felt, as I do, that the announcement of the two investigations were meant to forestall attempts by European (especially Spanish) prosecutors to pursue "universal jurisdiction" prosecutions of U.S. officials for torture.

"I don't see how there's a defensible justification that the investigations Durham announced can do that," Prasow said. "It's pretty clear that there should be an investigation into the deaths of these detainees," she added, "but it's so clear the investigation is very limited. The scope of the investigation is the most important part. Even if Durham had investigated the 100 or so cases that exceeded the legal authorities, it wouldn't be sufficient. What about the people who wrote the legal memos? Who told them to write the memos?" she said, emphasizing the fact that Durham's investigation was limited by Obama and Attorney General Eric Holder to only CIA crimes, and only those that supposedly exceeded the criteria for "enhanced interrogation" laid out in a number of administration legal memos. The torture, Prasow noted, was "throughout the military" as well, including "hundreds or thousands" tortured at sites in Iraq, Afghanistan and Guantanamo.

Prasow noted that the Obama administration has made it policy to block attempts by torture victims to get compensation for torture, asserting a policy of protecting "state secrets" to shut down court cases. "But there are other ways of providing redress," she said, adding that "providing redress is part of international laws." The HRW report itself states, "Consistent with its obligations under the Convention against Torture, the US government should ensure that victims of torture obtain redress, which may include providing victims with compensation where warranted outside of the judicial context."

The new HRW report comes on the heels of a controversy roiling around a proposed United Kingdom governmental inquiry into torture. A number of British human rights and legal agencies have said they would boycott the UK proceedings as a "whitewash." As Andy Worthington put it the other day:

As a result of pandering to the Americans’ wishes, the terms of reference are “so restrictive,” as the Guardian described it, that JUSTICE, the UK section of the International Commission of Jurists, warned that the inquiry “was likely to fail to comply with UK and international laws governing investigations into torture.” Eric Metcalfe, JUSTICE’s director of human rights policy, said that the rules “mean that the inquiry is unlikely to get to the truth behind the allegations and, even if it does, we may never know for sure. However diligent and committed Sir Peter [Gibson] and his team may be, the government has given itself the final word on what can be made public.”

Andrea Prasow echoed Metcalfe's fears, saying HRW had "some concerns about how much information [in the UK inquiry] was going to be kept secret. I think transparency, making it as public as possible, is most important."

The fight for transparency also makes HRW's call for prosecutions of high government officials, along with "an independent, nonpartisan commission, along the lines of the 9-11 Commission, [that] should be established to examine the actions of the executive branch, the CIA, the military, and Congress, with regard to Bush administration policies and practices that led to detainee abuse," very timely. In a column the other day at Secrecy News -- Pentagon Tightens Grip on Unclassified Information -- Steven Aftergood reported on a Department of Defense proposed new rule regarding classification. While the Obama administration is supposedly on record for greater governmental transparency, the new rule imposes "new safeguard requirements on 'prior designations indicating controlled access and dissemination (e.g., For Official Use Only, Sensitive But Unclassified, Limited Distribution, Proprietary, Originator Controlled, Law Enforcement Sensitive).'"

According to Aftergood, "By 'grandfathering' those old, obsolete markings in a new regulation for defense contractors, the DoD rule would effectively reactivate them and qualify them for continued protection under the new Controlled Unclassified Information (CUI) regime, thereby defeating the new policy." Even worse (if possible), "the proposed rule says that any unclassified information that has not been specifically approved for public release must be safeguarded. It establishes secrecy, not openness, as the presumptive status and default mode for most unclassified information."

Much of what we know about the Bush-era torture program is due to the work of the ACLU and Center for Constitutional Rights, who have used the Freedom of Information Act to gather hundreds of documents, if not thousands, that document the paper trail surrounding the crimes of the Bush administration. Reporters and investigators like Jane Mayer, Philippe Sands, Alfred McCoy, and Jason Leopold have also contributed much to our understanding of what occurred during the Bush years. The work of investigators going back years demonstrates that U.S. research into and propagation of torture around the world goes back decades.

The Senate Armed Services Committee has also produced an impressive, if still partially redacted, investigation (large PDF) into detainee abuse by the Department of Defense. Their report, for instance, concluded regarding torture at Guantanamo that “Secretary of Defense Donald Rumsfeld's authorization of interrogation techniques at Guantanamo Bay was a direct cause of detainee abuse there."

When one puts together the accelerated emphasis on "state secrets"; the Obama political program of "not looking back" in regards to U.S. war crimes (while supposedly pursuing accountability for torture and war crimes committed by other countries); the political passivity, if not cowardice of Congress; the fact that Obama "has not been transparent on the rendition issue, not even saying what its policy is," according to Andrea Prasow; and finally the lies and propaganda spewed forth by the former Administration's key figures and their proxies, one can only agree with HRW that enough is enough. The time for investigations and prosecutions into torture and rendition is now.

And if they won't listen in Washington, D.C., perhaps they will in Madrid. Or some other intrepid prosecutor in -- who knows? -- Brazil or Argentina or Chile will pay back America, as a matter of poetic but also real justice for the crimes endured by their societies when the U.S. helped organize torture and terror in their countries only a generation ago. There were no U.S. investigations into actions of government figures then, and now we are faced with another set of atrocities produced by our own government. If we do not act now, what will our children face?

European Union: Protest Sanctions Against Judge Garzón

The following is a press release from Human Rights Watch, dated April 22, 2010, describing the protest of the European Union against possible prosecution and suspension of Spanish Judge Baltasar Garzón, who has been investigating crimes of the previous Fascist regime of Francisco Franco. Judge Garzón has previously brought charges against other international figures for torture and crimes against humanity, such as former Chilean dictator Augusto Pinochet.

(Brussels) – The president of the European Union Council, Herman van Rompuy, and EU member states should express their concern over the prosecution and the potential suspension of Judge Baltasar Garzón of Spain for investigating Franco-era abuses, Human Rights Watch said today.

Garzón, of Spain’s National Audience tribunal, faces trial and suspension from his duties for investigating alleged cases of illegal detention and forced disappearances committed in Spain between 1936 and 1952. A Supreme Court investigating magistrate, Luciano Varela, has ruled that by intentionally bypassing Spain's 1977 amnesty law for "political acts," Garzón committed an abuse of power.

"Garzón sought justice for victims of human rights abuses abroad and now he's being punished for trying to do the same at home," said Lotte Leicht, EU advocacy director at Human Rights Watch. "The decision leaves Spain and Europe open to the charge of double standards and undermines the EU's credibility and effectiveness in the fight against impunity for serious crimes."

Varela’s decisions are expected to lead to a criminal prosecution of Garzón, and as a result, Spain’s General Council of the Judiciary (Consejo General del Poder Judicial) will consider Garzón’s temporary suspension.

However, Garzón’s decision not to apply Spain’s amnesty is supported by international conventional and customary law, which impose on states a duty to investigate the worst international crimes, including crimes against humanity. The sanctions against Garzón are not only a blow to the families of victims of serious crimes in Spain, Human Rights Watch said. The sanctions also risk undermining the EU’s collective credibility and effectiveness in seeking justice for current human rights crimes, be they in Darfur, the Democratic Republic of Congo, or Sri Lanka.

Under international law, governments have an obligation to ensure that victims of human rights abuses have equal and effective access to justice, as well as an effective remedy – including justice, truth, and adequate reparations – after they suffer a violation. The International Covenant on Civil and Political Rights (ICCPR), which Spain ratified in 1977 – before adopting the amnesty law - specifically states that governments have an obligation “to ensure that any person whose rights or freedoms … are violated shall have an effective remedy.”

In 2008, the UN Human Rights Committee, in charge of monitoring compliance with the ICCPR, called on Spain to repeal the 1977 amnesty law and to ensure that domestic courts do not apply limitation periods to crimes against humanity. In 2009, the Committee against Torture also recommended that Spain “ensure that acts of torture, which also include enforced disappearances, are not offences subject to amnesty” and asked Spain to “continue to step up its efforts to help the families of victims to find out what happened to the missing persons, to identify them, and to have their remains exhumed, if possible.”

The European Court of Human Rights held in 2009 (Ould Dah v France No. 13113/03, Decision on admissibility) as a general principle, that an amnesty law is generally incompatible with states’ duty to investigate acts of torture or barbarity.

On the other side of world events, and the globe, Scott Horton reminds us that justice for past crimes against humanity is not an impossibility:

Reynaldo Bignone served as Argentina’s head of state from 1982-83. He was involved in the military coup d’état that brought down Isabel Perón in 1976. Together with a number of other leaders of the military government that followed Perón, he was recently tried in Buenos Aires on charges that he authorized the torture and mistreatment of prisoners, kidnapping, and the operation of extralegal prisons, together with other crimes against humanity....

Bignone was convicted and received a 25-year sentence this week. His plea that he be allowed to serve his term under house arrest was denied because of the gravity of his crimes. He was ordered transferred to a prison outside of Buenos Aires....

The case of Reynaldo Bignone may make instructive reading for former Vice President Dick Cheney and CIA Deputy Director Steven Kappes. Cheney is in retirement, and Kappes is preparing to leave the agency. Both should be cautious about any future travel plans.

One imagines that Judge Garzón has read this news with some satisfaction, as he led international prosecutions of former members of the Argentinian military back in the 1990s.

Right-Wing Pursues Spanish Judge Who Investigated Pinochet, Bush Torture, Franco-Era Killings

Cross-posted from Firedoglake

An appeal to the Spanish Supreme Court by National Court judge Baltasar Garzón was denied last month, and in May he must appear before the Supreme Court itself. The charges? That Garzón violated his jurisdictional authority by investigating mass murder that took place under the rule of fascist dictator Francisco Franco. In Spain, judges have investigatory and prosecutorial powers that judges do not have in the United States.

Judge Garzón is most famously known for his ordering the arrest of former Chilean dictator Augusto Pinochet in London in 1998. Ultimately, the United Kingdom did not turn Pinochet over to Spain to be tried for crimes against humanity, and he was released on so-called medical grounds. Ultimately, Pinochet was indicted in Chile for tax fraud and forgery and died under suspended house arrest.

The Spanish judge, who sought Pinochet under international legal principles of universal jurisdiction, also “filed charges of genocide against Argentine military officers on the disappearance of Spanish citizens during Argentina’s 1976-1983 dictatorship.” In the United States, in 2009, Judge Garzón was in the news for his attempt to indict six Bush-era officials for creating the legal framework for torture, namely John Yoo, Jay Bybee, David Addington, Alberto Gonzales, Douglas Feith, and William Haynes, II.

But Garzón’s current problems date back to a case from last year, when the right-wing group, Manos Limpias (“Clean Hands”) brought charges against him. They contended that Garzón was violating the terms of a 1975 amnesty law passed after Franco died. But many human rights groups contest the legality of that law, and Garzón himself has declared that it did not — indeed, could not — cover crimes against humanity, which are subject to prosecution under universal jurisdiction.

Investigating Mass Murder and Torture

According to an article in Times Online:

The case centres on an investigation into the disappearance of at least 100,000 people during the Spanish Civil War and Franco’s dictatorship. Judge Garzón issued an unprecedented order [in 2008] to exhume from 25 mass graves the bodies of people who were shot by firing squad or murdered on the orders of kangaroo courts.

The judge began the controversial legal action last year at the request of families of the missing. He alleged that the killings of thousands of civilians were carried out systematically by Franco and his political allies. He accused the dictator, 44 army officers and members of the Falange fascist party of crimes against humanity.

Spain’s conservative Popular Party and the Roman Catholic Church were dismayed by Garzón’s actions. Buy the judge did not act purely on his own initiative. According to the UK Guardian, in a story at the time:

The judge’s investigation stems from around 1,200 petitions from families and associations asking for information on those who “disappeared” between July 1936 and November 1975, when Franco’s soldiers often dispatched dissidents during a paseo, a “stroll” that ended with a bullet in the head and an unmarked grave.

The Spanish magistrate also made no friends when he investigated corruption within the Popular Party, and some in Spain see this as payback. The amnesty case is just one of three court cases filed against Garzón. Just the other day, he was in court for supposedly taking a bribe.

Garzón also got heat from conservatives in the United States over his pursuit of the Bush Administration “Six”. Those charges, from last March, ultimately went nowhere. Even more, conservatives pushed through a bill in the Spanish parliament that forbid universal jurisdiction prosecutions, unless they involved Spanish citizens. But at the end of January 2010, Judge Garzón announced he would “begin an inquiry into the suspected torture and ill-treatment of detainees held at Guantanamo Bay… focused on Spanish citizen and ex-Guantanamo detainee Ahmed Abderraman Hamed,” the so-called “Spanish Taliban” (H/T various commenters at FDL). Formal criminal investigations into the same six Bush Administration figures have commenced.

As Scott Horton described it last February:

In its decision, the Spanish court concluded that the American Justice Department was not involved in any credible effort to investigate or prosecute torture cases connected with Guantánamo. It also announced that the Justice Department had defaulted in response to letters rogatory seeking clarification of issues surrounding the incidents of torture in which the Justice Department itself was directly involved. (So much for Eric Holder’s pledge of cooperation with European counterterrorism investigators.)

While the Obama administration has not commented on Garzón’s latest troubles, former Bush/Rumsfeld speech writer, and new Washington Post columnist, Marc Thiessen can barely contain his glee. “Poetic Justice,” Thiessen crowed, when the Supreme Court announced a few weeks back it would go ahead with the charges against Garzón. To the uber-conservative Thiessen, who thinks waterboarding is just fine, Baltasar Garzón is a “rogue” judge, and his legal troubles are “Good news on the international law front.” The fact that Garzón has prosecuted both Basque and Al Qaeda terrorists, that he has investigated corruption in both conservative and socialist parties, means nothing to a paid ideologue like Thiessen.

Support Grows for Spanish Judge

But not everyone feels this way. The New York Times ran an editorial last week castigating the Spanish Supreme Court’s decision — “the politically driven case… should have been thrown out of court — and the judge has the support of “government ministers, eminent judges and Pedro Almodóvar, the Oscar-winning film director.” Protesters have taken to the streets in Garzón’s support, and there have been trade union rallies.

In Argentina, Garzon supporters are taking up his crusade to get justice for the crimes of Fascist Spain, helping the man who once tried to help their country come to terms with the deaths and disappearances of the military regime that once ruled that country. According to an April 14 AP story at the Huffington Post, Argentine human rights groups will ask for their own “local judicial probe of murders and disappearances as well as alleged genocide committed during Spain’s Civil War and Gen. Francisco Franco’s long dictatorship,” relying on complaints by relatives of Spanish and Argentine victims of the 1936-1939 war, who apparently already filed their cases in Argentina’s federal court.

Progressives in the United States owe a great debt of gratitude to Judge Garzón, for standing up for what is right — accountability for torture and other war crimes, the principles of international law and universal jurisdiction — and obviously he has put his life and career on the line for these principles. We cannot be indifferent to his fate.

Update: It should be noted that Manos Limpias was joined in its complaint against Judge Garzón by the Freedom and Identity association and the ultra-right Spanish Falange. The Falange, or Spanish Fascist Party, was the only party allowed to exist in Spain during the years of Franco’s rule.