Tuesday, April 7, 2009

Spain Investigates What America Should

Spain Investigates What America Should

by Marjorie Cohn

 

April 6, 2009

 

San Francisco Chronicle

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/04/06/EDSG16SH3N.DTL

 

A Spanish court has initiated criminal proceedings

against six former officials of the Bush

administration. John Yoo, Jay Bybee, David Addington,

Alberto Gonzales, William Haynes and Douglas Feith may

face charges in Spain for authorizing torture at Guantanamo Bay.

 

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. They help to create a just

world in which we all seek to live.

 

Israel used universal jurisdiction to prosecute,

convict and execute Adolph Eichmann for his crimes

during the Holocaust, even they had no direct

relationship with Israel.

 

A federal court in Miami recently convicted Chuckie

Taylor, son of the former Liberian president, of

torture that occurred in Liberia. A U.S. court

sentenced Taylor to 97 years in prison in January.

 

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.

 

When the United States ratified the Convention Against

Torture, it promised to extradite or prosecute those

who commit, or are complicit in, the commission of torture.

 

President Obama, when asked whether he favored criminal

investigations of Bush officials, replied, "My view is

also that nobody's above the law and, if there are

clear instances of wrongdoing, that people should be

prosecuted just like any ordinary citizen."

 

"But," he added, "generally speaking, I'm more

interested in looking forward than I am in looking

backward." Preoccupied with the economy and two wars,

Obama reportedly wants to wait before considering

prosecutions that would invariably anger the GOP.

 

Evidence that Bush officials set a policy that led to

the torture of prisoners at Guantanamo continues to emerge.

 

According to ABC News, Gonzales met with other

officials in the White House and authorized torture,

including waterboarding.

 

The Office of Professional Responsibility, which

reports to the U.S. attorney general, drafted a report

that excoriates Yoo and Bybee for writing the infamous

torture memos. Haynes, Addington and Feith participated

in decisions that led to torture. The release of

additional graphic torture memos by the U.S. Department

of Justice is imminent.

 

It is the responsibility of the United States to

investigate allegations of torture. Almost two-thirds

of respondents to a USA Today/Gallup Poll favor

investigations of the Bush team for torture and

warrantless wiretapping. Nearly four in 10 support

criminal investigations.

 

Former Navy General Counsel Alberto Mora told Congress,

"There are serving U.S. flag-rank officers who maintain

that the first and second identifiable causes of U.S.

combat deaths in Iraq - as judged by their

effectiveness in recruiting insurgent fighters into

combat - are, respectively the symbols of Abu Ghraib

and Guantanamo." Providing impunity to those who

ordered the torture will be the third recruiting tool.

 

If the United States refuses to investigate now, it

will be more likely that some future administration

will repeat this scenario. The use of torture should be

purged from our system, much like we eradicated slavery.

==

 

Marjorie Cohn is a professor at Thomas Jefferson School

of Law and president of the National Lawyers Guild.

She is the author of Cowboy Republic: Six Ways the Bush

Gang Has Defied the Law and co-author of Rules of

Disengagement: The Politics and Honor of Military

Dissent (with Kathleen Gilberd).  Her articles are

archived at www.marjoriecohn.com.

 

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