Spain Proceeding With Bush Torture Case

By Carol Rosenberg, The Miami Herald

16 January 12

The Obama administration may want to look forward but but other countries are still interested in determining whether Bush-era anti-terror practices violated international law.

Spanish judge on Friday re-launched an investigation into the alleged torture of detainees held at the U.S. detention center at Guantánamo Bay, Cuba, one day after a British authorities launched a probe into CIA renditions to Libya.

The twin developments demonstrated that while the Obama administration has stuck to its promise not to investigate whether Bush administration officials acted illegally by authorizing the use of harsh interrogation techniques, other countries are still interested in determining whether Bush-era anti-terror practices violated international law.

In Madrid, Judge Pablo Rafael Ruz Gutierrez handed down a 19-page decision Friday in which he said he would seek additional information - medical data, a translation of a Human Rights Watch report, elaboration on material made public by WikiLeaks, and testimony from three senior U.S. military officers who served at Guantánamo - in the case of four released Guantánamo captives who allege they were humiliated and subjected to torture while in U.S. custody.

Ruz said, however, that it would be premature to notify the former U.S. officials named in the former detainees' complaint that they are under investigation. Those officials include former President George W. Bush, former Vice President Dick Cheney, former Defense Secretary Donald Rumsfeld and two former Guantánamo commanders, retired Marine Maj. Gen. Michael Lehnert and retired Army Maj. Gen. Geoffrey Miller.

Ruz said the complaint had yet to tie any of them to specific acts. He said he would ask Spanish prosecutors to determine who in the United States should be informed of the probe so that they could offer exculpatory evidence.

In London, the Crown Prosecution Service and Scotland Yard said Thursday that they would investigate allegations of British involvement in the Bush-era "extraordinary rendition" program, specifically whether British intelligence had a hand in delivering two Libyan opponents of Col. Moammar Gadhafi to Libyan jails, where they were tortured by Gadhafi's secret police.

Scotland Yard agreed to go forward on that probe while dropping another involving the interrogation in Morocco of former Guantánamo detainee Binyam Mohamed. British human rights activists had sought to hold British intelligence responsible for Mohamed's treatment in Morocco - he called it torture, and the investigators said there was no reason to doubt his account. But they found "it is not possible to bring criminal charges against an identifiable individual."

International human rights groups have turned to the European courts after losing successive efforts to bring cases in U.S. courts, which typically invoked the states secret doctrine to get lawsuits dismissed not on the merits but as a national security necessity.

"In the globalized world in which we live, justice processes are going to go forward," said James Goldston, executive director of the Open Society Justice Initiative, a legal advocacy group founded by investor George Soros.

"These crimes are universal crimes and it's very clear that until the United States holds to account those responsible for these crimes, other judicial actors in other countries are going to press for accountability."

Goldston said international investigations were necessary because the United States has heeded President Barack Obama's call to look forward, not back.

"There's no accountability process," he said. "There're no court proceedings. There're no truth commissions. There's even less appetite today than there was three years ago."

Open Society has asked the European Court of Human Rights to press Poland to investigate the CIA's treatment of a current Guantánamo captive who was waterboarded and threatened with a cocked gun in a secret CIA prison.

That case's theory: Europe has an obligation to intervene because the Pentagon is seeking the execution of that captive, alleged USS Cole bomber Abd al Rahim al Nashiri, who is currently facing charges before a military commission at Guantánamo.

Ruz ruled that under international law the United States has no right to declare itself immune from international prohibitions against torture "even in times of war or the fight against terrorism." He also rejected U.S. claims that Guantánamo detainees had no right to protection under the Geneva conventions.

The roots of the Spanish torture case, in a twist, were a request from the Bush administration that Spain prosecute Spanish detainee Lahcen Ikassrien on terror charges upon his release from Guantánamo. Spain did and initially found him guilty. But Spain's high court threw out that case, saying his statements while being interrogated at Guantánamo were unreliable because he had been tortured.

Three other former Guantánamo detainees joined Ikassrien in his complaint: Hamed Abderraman Ahmed, who also was released to Spain, and Jamil el Banna and Omar Deghayes, both of whom are now in Great Britain.

The Spanish judge said he decided to proceed with the case because the United States had never responded to a July 2009 question from the Spanish government about whether an investigation would be launched into the allegations.

There was no immediate comment Friday from the State Department.

Ruz said the first step in his investigation would be to obtain medical statements that the complainants had suffered injuries consistent with torture. He also asked the defendants to provide a Spanish-language translation of a July report by Human Rights Watch titled "Getting Away With Torture: The Bush Administration and Mistreatment of Detainees."

Ruz also ordered the Spanish newspaper El Pais to surrender documents it had obtained from WikiLeaks that the paper had cited in April as evidence of abuse. He said the documents - secret assessments of the four prisoners that WikiLeaks shared with several news organizations, including McClatchy - were necessary to determine if the officers who'd signed them - Army Maj. Gen. Jay W. Hood, retired Army National Guard Brig. Gen. Mitchell Leclaire, and Army Reserve Brig. Gen. James E. Payne III - should be called as witnesses.

Hood was in charge of the prison camps at Guantánamo and signed the assessment of Ikassrien in November 2004. He also signed Banna's assessment in May 2005. Leclaire, who retired as commander of the Michigan Army National Guard, was deputy commander at Guantánamo and signed Omar Deghayes' risk assessment in 2004. Payne, who also served as deputy commander of the camps, signed Hamed Abderraman Ahmed's assessment in 2003.