The Farm applauds the office of Spanish Judge Baltasar Garzon for courageously opening an investigation regarding the Bush administration’s torture of alleged terror suspects at Guantanamo Bay, Abu Graib, and elsewhere. His noble decision to forge ahead last week (April 29th) with the high calling of this international legal mission is truly exemplary. It is good to see that quixotice chivalry still exists in this world. The significance of Garzon suiting up for this joust and single-handedly taking on the black magicians of the Bush administration through the power of universal jurisdiction is profound: it places on notice the entire modus operandi of the American New World Order and all its neo-con hawks, and presents before the world the powerful notion that no one, no one, is above the law, including a notorious American presidency or any further to come. The citizens of this world supremely deserve that the Bush administration be tried in an international court of law for its crimes against humanity and this decision to do so by Judge Garzon marks an extraordinarily positive and extremely encouraging direction, if not an altogether inspiring one.
What I find most striking is that Garzon is acting on his own initiative in this affair. Spanish prosecutors said on April 17 that any such probe should be carried out by the U.S. and recommended against it being launched in Spain, an opinion that had been endorsed by the Spanish Attorney General. Garzon, however, due to the fact that Spanish law recognizes the principle of universal jurisdiction, is able to personally undertake this matter simply by holding the magistrate seat of Juzgado Central de Instrucción, Numero 5. A law passed in Spain in 1985 established that Spanish courts have jurisdiction over crimes outside Spain when those crimes can be typified as genocide and terrorism, as well as any other crime that violates international treaties or conventions. Several other countries, such as Canada and France, also possess constitutional provisions that enable their courts to enforce the U.N. Convention against Torture, but none of them have stepped up to do so. Thus, Garzon, as one of six Spanish judges empowered to investigate such crimes, has made an enormously gutsy decision to take this on.
In a 10-page writ, Garzon said documents and various memos on Bush-era treatment of prisoners "reveal what had been just an intuition: an authorized and systematic plan of torture and mistreatment of persons denied freedom without any charge whatsoever and without the rights enjoyed by any detainee” and suggest "the existence of a concerted plan to carry out a multiplicity of crimes of torture." He said this plan took on "almost an official nature and therefore entails criminal liability in the different structures of execution, command, design and authorization of this systematic plan of torture." He said he also is acting on the basis of accounts by four former Guantanamo inmates who have alleged in Spanish courts that they were tortured at that U.S. prison in eastern Cuba. All four were once accused of belonging to a Spanish al-Qaida cell but eventually cleared of the accusations. One is a Spanish citizen, another is a Moroccan citizen who has lived in Spain for more than a decade, and the other two are residents of Britain. This latter fact greatly legitimizes Spain’s involvement in opening its court to the prosecution of Bush era defendants.
As I had mentioned in a previous post, it is my strong feeling that an international prosecution of those individuals behind this systemic plan of torture would possess much more bite than any result that a U.S. investigation might produce because, all things considered, American internal politics would darkly cloud the light that needs to be objectively shined on this matter. I'll provide some clear examples.
First, it is highly likely that what is called a “special prosecutor” would be assigned to proceed with this investigation, in which case it would immediately become clear that a special prosecutor, while digging up facts, does so only in order to prosecute a possible crime. As revealed in a recent article in Mother Jones magazine, author David Corn related the pathetic weaknesses of such an investigation: "a special prosecutor’s mission is not to shine light on misdeeds, unless it is part of a prosecution. In many cases, a prosecutor's investigation does not produce any prosecutions. Sometimes, it leads only to a limited prosecution". In short, a special prosecutor is ultimately a criminal detective and much less of a litigating attorney.
The most recently assigned special prosecutor, Patrick Fitzgerald, spent months upon years investigating the CIA leak case trying to determine who in the Bush administration had done what relating to the disclosure of the agent’s classified CIA identity. “He investigated forcefully and thoroughly, and he ultimately prosecuted Scooter Libby, Vice President Dick Cheney's chief of staff, for having lied to the FBI and a grand jury about his actions in this affair. Fitzgerald mounted a strong case against Libby and won a conviction and a tough prison sentence--which President George W. Bush subsequently commuted”. Further, “he could not share with the public all that he had discovered about the involvement of Bush, Cheney, Karl Rove, and other officials in the CIA leak case. Under the rules governing federal criminal investigations, he was permitted to disclose only information and evidence that was directly related and needed for the indictment and prosecution of Libby. Everything else he had unearthed via subpoenas and grand jury interviews had to remain secret. Repeatedly, Fitzgerald said that his hands were tied on this point”. Clearly, there’s little point in this. In fact, there’s no point in this.
The article, however, goes on to say that other vehicles for a U.S. government investigation exist, mainly, Congress and/or an independent commission. The Senate intelligence committee, under the leadership of Senator Dianne Feinstein, is already conducting a probe. “But there is no telling what information it will make public via hearings or a final report. Traditionally, the congressional intelligence committees have been overly sensitive--or far too deferential--to the secrecy demands of the intelligence agencies they are supposed to oversee. And congressional investigations of hot-button topics, as Obama has recently noted, do tend to become political mud-wrestling matches. (The Senate intelligence committee's examination of the Bush administration's use of the prewar intelligence about WMDs in Iraq turned into a mess.)”. He concludes, “a well-managed and thorough congressional investigation that placed a premium on public disclosure could (my italics) serve the public need for accountability. So could an independent commission. Several human rights groups--including Amnesty International, Human Rights First, Human Rights Watch, and the Center for Victims of Torture--have asked Obama to establish an independent nonpartisan commission that would examine the torture and abuse of detainees and issue a public report”.
Yet, the President is not keen on this for eminently practical reasons: the White House has enough problems and crises right in front of it without needing to look for any behind it. As regards Obama's involvement in this matter I am willing to concede that he has contributed enough already by releasing the memos and rolling back Guantanamo. Though it is true that he has kept his hands off of this political hot potato as much as he can, it's not like he doesn't have anything better to worry about.
Lastly, there is yesterday’s article in the New York Times about a just concluded internal Justice Department inquiry by the Office of Professional Responsibility, an internal ethics unit within the Justice Department, that further spells out the inefficacy of any punishment that could be meted out to these miscreant lawyers who authorized the “enhanced interrogation methods”. It found that “Bush administration lawyers committed serious lapses of judgment in writing secret memorandums authorizing brutal interrogations, but that they should not be prosecuted”. In summation of the article, it is likely that the ethics unit will ask state bar associations to consider possible disciplinary action, which could include reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions. Yet, the Washington Post said in a related article that according to the queried opinions of experts on legal ethics “efforts to impose professional sanctions on Bush administration lawyers who drafted memos supporting harsh interrogations of terrorism suspects face steep hurdles. Law professors and legal practitioners who have handled such cases said the difficulty of gathering witnesses and evidence could present ‘nearly insurmountable challenges’ for state investigators who may wish to pursue a case against the lawyers, John C. Yoo and Jay S. Bybee. The core question, one such expert said, is whether state lawyers could prove that Yoo and Bybee ran afoul of professional rules. ‘The only theory on which [a case] could proceed would be if lawyers violated their duty to a client . . . by giving the White House an opinion in which they did not actually believe’. Veterans of state bar offices said the organizations tend to move slowly because they are strapped for resources and are overwhelmed by cases in which lawyers failed to appear in court or absconded with clients' funds.” So the ethics unit determines that they should not be prosecuted, experts say it couldn't be done anyway. End of the day: not only will these guys not do criminal time, they won’t even lose their professional credentials as lawyers, thus allowing them to continue on their merry, little criminal way as lawyers.
My point in discussing the above is to show just how necessary Garzon’s investigation is -- regardless of critics who claim, such as former U.S. ambassador to the United Nations John Bolton did in a Washington Post editorial yesterday, being the good neo-con hawk that he is, that “President Obama's passivity before the threatened foreign prosecution of Bush administration officials achieves by inaction what he fears doing directly” and that by allowing the Spanish to take care of this matter for America “by proxy” that “it risks grave long-term damage to the United States…that could also come back to bite future Obama administration alumni, including the president, for their current policies in Iraq, Afghanistan and elsewhere”. What Bolton is really complaining about is that it would set the political precedent for placing an American administration smack dab in the middle of an international court were it to behave in the same benighted way as the very recent neo-con hawk New World Nightmare regime had for the last eight years, which is the whole reason for Judge Garzon’s investigation in the first place.
The evidence that exists in the body of declassified memos between the CIA and the U.S Department of Justice that were released by the Obama administration, plus the International Red Cross’ interviews with those detained and tortured at Guantanamo will almost certainly prove sufficient to bring a guilty verdict against those charged. The only question is how far up the ladder the prosecution will successfully scale. It is my guess that the honorable judge ultimately has his sights set on the Oval Office, where "the existence of a concerted plan to carry out a multiplicity of crimes of torture...in the different structures of execution, command, design and authorization"began. The truth is, justice won’t be served in any other way. I’ll be waiting.
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