Spain’s Criminal Case Against U.S. Authors of Legal Memoranda Allegedly Justifying Torture

Spain’s National Court (Audiencia Nacional) has three criminal cases on its docket involving allegations of illegal conduct by U.S. officials with respect to U.S. interrogation of foreigners and war crimes. The Spanish court is involved because it has exercised its right under the international law principle of universal jurisdiction for a national court to exercise jurisdiction over such cases even if the crimes did not occur on its territory.

On March 17, 2009, the Spanish Association for the Dignity of Prisoners filed a 98-page criminal complaint in the Spanish court against six officials of the George W. Bush Administration: (i) David Addington (former Counsel to, and Chief of Staff for, former U.S. Vice President Cheney); (ii) Jay S. Bybee (former Assistant Attorney General, Office of Legal Counsel (OLC), U.S. Department of Justice (DOJ)); (iii) Douglas Feith (former Under Secretary of Defense for Policy, U.S. Department of Defense (DOD)); (iv) Alberto R. Gonzales (former Counsel to former U.S. President George W. Bush, and former U.S. Attorney General); (v) William J. Haynes (former General Counsel, DOD); and (vi) John Yoo (former Deputy Assistant Attorney General, OLC, DOJ).

The six officials are alleged to have participated in, or aided and abetted, the torture and other serious abuse of persons detained at U.S. run-facilities at Guantánamo and other overseas locations, all in violation of international law, including violations of the Geneva Conventions and the Convention Against Torture.

On March 28, 2009, Judge Baltasar Garzon decided that the complaint met jurisdictional requirements and opened a preliminary investigation.

On April 16, 2009, Spain’s Attorney General raised objections to the continuance of the case, and the next day, Spain’s Public Prosecutor filed a request that the complaint be dismissed and responsibility for investigating the matter be referred to a different judge. The latter was done on April 23rd with Judge Eloy Velasco being assigned.

On May 4, 2009, Judge Velasco, pursuant to the US-Spain Treaty on Mutual Assistance in Criminal Matters, sent a formal request (Letters Rogatory) to the U.S. asking it to state “whether the facts to which the complaint makes reference are or not now being investigated or prosecuted.”  If there had been an affirmative response to this question, the Spanish court undoubtedly would have closed its investigation.

Nearly two years later, on March 4, 2011, the U.S. finally responded to the Letters Rogatory. It stated that the U.S. had clear jurisdiction over the case and asking that the case be sent to the U.S. for further review and investigation.

On April 13, 2011, Judge Velasco temporarily stayed the case in Spain and transferred the case to the U.S. Department of Justice with a request for the U.S. to indicate the time frame for U.S. action on the complaint.

On April 19, 2011, the Spanish Association for the Dignity of Prisoners filed an appeal of Judge Velasco’s order staying the case. That appeal is still pending.

In summary, the case is still pending in Spain with unresolved issues.

In the meantime, the body responsible for monitoring compliance with the multilateral treaty against torture (the Committee Against Torture or CAT) has severely criticized U.S. treatment of detainees in the so-called “war on terrorism” and the U.S. purported legal justification of such treatment through so-called “enhanced interrogation” techniques.

Spain’s Criminal Case Over Alleged U.S. Torture of Guantanamo Detainees

As set forth in a prior post, Spain has implemented the principle of universal jurisdiction in three pending criminal cases against certain U.S. officials for their alleged involvement in torture. When reviewing these three cases, the reader needs to be aware that under Spanish law, unlike U.S. law, ordinary citizens and NGO’s may initiate criminal cases as a popular prosecutor by filing a criminal case with the court, as was done in all three of these cases.

The first of these cases against U.S. officials relates to the alleged use of torture at the U.S. detention facility at Guantanamo Bay, Cuba. It is directed at “members of the American air forces or military intelligence and all those who executed and/or designed a systemic torture plan and inhuman and degrading treatment against prisoners in their custody.”

Audiencia Nacional

This case began on April 27, 2009, when Judge Garzon at the Audiencia Nacional initiated a preliminary investigation of U.S. interrogation and treatment of four former detainees at Guantanamo, all of whom had been acquitted of Spanish criminal charges because of their having been tortured and subject to other abuses while at that facility. This decision did not name potential defendants and instead indicated it was directed at “possible material and instigating perpetrators, necessary collaborators and accomplices.” These facts, said the court, amounted to violations of the Geneva Conventions and the Convention Against Torture.

On May 15, 2009, Judge Garzon issued a formal request (Letters Rogatory) to the U.S. and the U.K. asking whether there were any criminal investigations regarding the treatment of these four men. Neither country responded. If there had been such investigations in the U.S. or the U.K., then the Spanish court would not proceed.

On January 27, 2010, Judge Garzon determined that the court had jurisdiction over the case because two of the men were a Spanish citizen or resident and because the violations constituted crimes against humanity as well as violations of multilateral human rights treaties to which the U.S. was a party.

In May 2010 Judge Garzon was suspended from judicial service and removed from this case after a criminal case had been brought against him for initiating a criminal case regarding atrocities of the Spanish Civil War and the Franco regime. Judge Pablo Rafael Ruz Guitierrez took over the handling of this case.

On April 6, 2011, an appellate court (the Plenary of the Criminal Division of the Audiencia Nacional) affirmed that the Spanish courts were competent to hear this complaint while dismissing an appeal by the Public Prosecutor’s Office that had requested dismissal.

On January 12, 2012, Judge  Ruz issued a decision noting that the court had not received any responses to the letters rogatory to the U.S. and U.K. and affirming that the Spanish court had jurisdiction over the case.

In summary, the case is still pending and is not yet resolved.