Spain ends Investigations into the US Torture Program
On 18 November 2016 Spain’s Supreme Court (Tribunal Supremo) closed the investigations into incidents of systematic torture and cruel, inhuman and degrading treatment of detainees occurring in Guantánamo after 2001. The Spanish judiciary had been conducting investigations into the US torture program since 2009. ECCHR and its cooperation attorneys in Spain are now considering an appeal against the decision of the Supreme Court.
The “Bush Six” Case
In March 2009 a criminal complaint was filed against six former US officials regarding their accountability for violations of international law, including war crimes and torture. The “Bush Six”, as the six US officials became known, includes David Addington (former Counsel to, and Chief of Staff for the former Vice President Dick Cheney); Jay Bybee (former Assistant Attorney General, Office of Legal Counsel, Department of Justice); Douglas Feith (former Under Secretary of Defense for Policy at the Department of Defense); Alberto Gonzales (former Counsel to President George W. Bush, former US Attorney General); William J. Haynes (former General Counsel at the Department of Defense) and John Yoo (former Deputy Assistant Attorney General at the Office of Legal Counsel within the Department of Justice).
The Bush Six are accused of having aided and abetted crimes of torture, cruel, inhuman or degrading treatment and grave breaches of the Geneva Conventions of 1949. The crimes in question were committed at US detention facilities at Guantánamo and at other locations. In the expert opinion submitted jointly by the New York based Center for Constitutional Rights (CCR) and the Berlin based European Center for Constitutional and Human Rights (ECCHR) to the Audiencia Nacional in January 2011, both organizations show how the knowingly flawed legal advice provided by the defendants on (a) the applicability of the Geneva Conventions to the conflict with Al Qaeda and Taliban, and (b) the legality of specific interrogation techniques, provided a basis for the commission of international crimes.
Jurisdiction of Spanish Courts
In October 2009 the Spanish Senate restricted Spain’s extraterritorial jurisdiction to crimes that have a demonstrated link with Spain (e.g. the presence of the alleged perpetrator in Spanish territory, the victim’s Spanish nationality or other relevant link) and are not being investigated or prosecuted by another competent country or international tribunal. Nonetheless, as the ECCHR and CCR demonstrate in their joint opinion from April 2010, the Bush Six case clearly meets these criteria as (a) the victim that filed the criminal complaint – Hamed Abderrahman Ahmed – is a Spanish citizen; and (b) there has been no effective investigation or prosecution into the crimes alleged to date, nor is there likely to be any such investigation in the near future.
Moreover, even if the Court were to find that the criteria discussed above are not satisfied, Spain must nevertheless retain jurisdiction over these crimes as they constitute violations of international treaties to which Spain is a party. Among these treaties, the UN Convention against Torture and the grave breaches provisions of the Geneva Conventions provide for the universal jurisdiction over acts alleged in this case. In other words, Spain can and indeed has an obligation to prosecute these crimes no matter where they have been committed or what the nationality of their perpetrator(s) may be.
In May 2009 and again in April 2010, Judge Velasco, who is responsible for the investigation of the Bush Six case, issued formal rogatory letters to the United States seeking information regarding any pending investigations in the US that would render the Spanish complaint unnecessary. The Obama administration repeatedly ignored the request, while, as the WikiLeaks cables suggest, they acted to undermine the legal process through political means. In January 2011, Judge Velasco issued a final order for compliance, setting a March 1 deadline, to which the US finally replied.
In its submission, the Department of Justice requests that the Spanish Court refer the case to the United States for further review, as it claims to be fully capable of investigating and prosecuting the alleged crimes. Although the US failed to cite any evidence that it has, in fact, undertaken such investigations or prosecutions against mid or high-level US officials, on 13 April 2011 Judge Velasco temporarily stayed the Bush Six case in Spanish courts, referring it back to the United States “for it to be continued”. On 19 April 2011, an appeal was filed against Judge Velasco’s ruling. The Spanish National Court declined to order the resumption of the investigation. After a further appeal was rejected by the Spanish Supreme Court, a petition for review was filed and is now pending before the Spanish Constitutional Court. ECCHR and CCR, supported by a range of former UN Special Rapporteurs, members of the US military, legal experts and human rights organizations experts filed a brief on 25 September 2012 setting out the continued failure of US authorities to initiate prosecutions in the case.
The Guantánamo Case
In April 2009, Judge Baltasar Garzón opened a preliminary investigation into what he termed “an authorized and systematic plan of torture and ill-treatment on persons deprived of their freedom without any charge and without the basic rights of any detainee, set out and required by applicable international conventions” in US detention facilities. The preliminary investigation did not name any potential defendants. In May 2010, Judge Garzón was suspended from the case and replaced by Judge Ruz. On 10 January 2013 Judge Ruz issued a decision formally admitting ECCHR and CCR to the case as representatives of two former detainees, including Murat Kurnaz.
The case concerns alleged torture and abuse of four former Guantánamo detainees, namely Hamed Abderrahman Ahmed, Ikassrien Lahcen, Jamiel Abdul Latif Al Banna and Omar Deghayes. The four men were held in cells made of chicken-wire in intense heat; they were subjected to constant loud music, extreme temperatures and bright lights; they were repeatedly interrogated without counsel; they were sexually assaulted and were subjected to forced nudity and severe beatings. Judge Garzón found that the facts relate to violations under the Spanish Penal Code, the Third and Fourth Geneva Conventions, the Convention against Torture, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, as well as Spain’s Organic Law of the Judicial Power.
Jurisdiction of Spanish Courts
In January 2010, Judge Garzón issued a decision confirming that these cases fall under Spanish jurisdiction. He found that all four victims have a demonstrated link with Spain: Mr. Ahmed is Spanish citizen, Mr. Ikassrien has resided in Spain for more than 13 years and Spanish courts have previously issued extradition requests for Mr. Al Banna and Mr. Deghayes. All four men have previously been the subject of a criminal case in Spain, but were subsequently acquitted because of the use of torture and other forms of serious abuse to which they had been subjected during their detention and interrogations at Guantánamo.
However, even in the absence of these links between the victims and Spain, Judge Garzón concluded that jurisdiction over the case would nonetheless exist since the alleged violations constitute crimes against humanity and are covered by international treaties, including the Geneva Conventions, the Convention Against Torture and the International Covenant on Civil and Political Rights.
The Public Prosecutor filed an appeal against the decision by Judge Garzón to open the case. The appeal was rejected by a decision of the appeals panel of the National Court in April 2011, confirming that Spain has jurisdiction over the case.
Investigations in Spain
In May 2009, Judge Garzón issued formal requests to the United States and the United Kingdom seeking information regarding any pending investigations in the respective countries that would render the Spanish case unnecessary. To date, neither country has responded. Consequently, in January 2010 Judge Garzón found the answers to these questions moot, stating that the burden lies on the defendant to establish that jurisdiction is not proper, and not upon the victims to prove that it is in cases raising such claims: “it cannot be accepted that the court or the victim have to perform detective work to know where there is a procedure open and to try to establish a negative fact.”
Two witnesses and one expert witness have already given testimony before Judge Garzón. In January 2011, CCR and ECCHR submitted a dossier to the Spanish National Court on the former commander of Guantánamo, Geoffrey Miller, providing evidence of his role in the torture of detainees at Guantánamo and in Iraq. Based on the information in the dossier, CCR and ECCHR request that a subpoena be issued for Miller to testify.