No Spain, No Gain

"I didn't expect a Spanish Inquisition"

In the Spring of 2009, after it became clear that the Obama Administration was not going to pursue any meaningful investigation, much less prosecution, of the Bush Administration's use of torture in its war on terror, I was heartened when Spanish Magistrate Baltasar Garzon ordered an inquiry into whether six senior Bush administration officials, the Bush Six, were responsible for "an authorized and systematic plan for torture."  Judge Garzon is a heroic figure who previously ordered the arrest of Chilean dictator Augusto Pinochet.  The torture investigation stemmed from allegations from five Spanish citizens imprisoned at Guantánamo.  (Spain was also investigating other Bush Administration misdeeds:  the death of a Spanish cameraman when Baghdad's Palestine Hotel was shelled and the use of Spanish bases and airfields for CIA extraordinary renditions flight).

We now know, thanks to WikiLeaks, that U.S. officials in the Obama Administration tried to influence Spanish prosecutors and government officials to stop these investigations.  As summarized by Scott Horton, the cables "reveal a large-scale, closely coordinated effort by the State Department to obstruct these criminal investigations."

High-ranking U.S. visitors such as former Republican Party Chair Mel Martinez, Senator Greg Judd, and Homeland Security Secretary Janet Napolitano were corralled into this effort, warning Spanish political leaders that the criminal investigations would “be misunderstood” and would harm bilateral relations. The U.S. diplomats also sought out and communicated directly with judges and prosecutors, attempting to steer the cases into the hands of judges of their choosing. The cables also reflect an absolutely extraordinary rapport between the Madrid embassy and Spanish prosecutors, who repeatedly appear to be doing the embassy’s bidding.

According to the cables, the embassy discussed with Spanish authorities specific judges handling these cases and obtained a promise from prosecutors to have the torture case assigned to a judge they considered friendlier to the United States.  And, lo and behold, the torture investigation has languished.  Garzon has since been suspended after being charged with abusing his powers to investigate Spanish Civil War atrocities, and, as David Corn reports, another judge is now overseeing the case, which has gone nowhere.

President Bush, in touting his new book, proudly admitted that he authorized waterboarding and considered it legal "because the lawyer said it was legal."  These lawyers -- the Bush Six -- provided the legal justification for torture based on what well-respected legal experts have characterized as "embarrassingly weak," "blatantly wrong" and "erroneous legal analysis."  There is little doubt that they conformed their legal opinions to reach the results Bush wanted.  As Georgetown law professor David Cole put it:

They concluded that keeping suspects awake for eleven days straight, stripping them naked, exposing them to cold temperatures, dousing them with water, slamming them into walls, forcing them into cramped boxes and stress positions for hours at a time, and waterboarding them hundreds of times were not torture, not cruel, not inhuman, not even degrading, and therefore perfectly legal. The memos make clear that true accountability . . . must extend up the chain of authority, to the lawyers and Cabinet officers who approved the “enhanced interrogation techniques” in the first place. 

President Obama has stated that since his Administration won't condone torture we can simply move forward.  This is remarkably short-sighted. If we are to remain a nation of laws then when high government officials break the law or cynically bend the law to justify human rights violations there need to be consequences.  As Professor Cole eloquently states:  "Absent a reckoning for those responsible for making torture and cruel, inhuman, and degrading treatment official US policy, the United States’ commitment to the rule of law will remain a hollow shell -- a commitment to be honored only when it is not inconvenient or impolitic to do so."

We have known for some time that this reckoning would not come from the U.S. government, but it did appear that other countries might fill the breach.  What the leaked cables tell us is that the Obama Administration was not only passively refusing to examine the Bush Administration's wrongdoing but actively pressuring other governments to cease their inquiries.  It appears that Obama can be tough when he wants to be.   [Related posts:  Pitfalls of Only Looking Forward, Tortured Logic]