Saturday, March 28, 2009

Irony Alert: Can Spain Abduct Bush-Era Officials and Prosecute Them for Violating International Law?

The New York Times reports that Spain has launched a criminal investigation to determine whether officials in the Bush administration violated international law by authorizing the torture of detainees at Guantanamo Bay. A source "close to the case" believes that the investigation will likely produce sufficient evidence to arrest the individuals.

Arrest warrants in this setting, however, would have at most a symbolic value. Unless the Obama administration does the unthinkable act of seizing Bush-era officials and placing them in the extradition process, Spain's criminal investigation probably will not lead to an arrest or prosecution. Because the Obama administration has already announced that it will not prosecute Bush-era officials who condoned or engaged in torture, it is highly unlikely that the President would turn over these officials to Spain (or any other country) for prosecution.

Irony Alert: Liberal and Conservative Arguments Support Spain Abducting Bush-Era Officials
Outside of the normal channels for transferring suspects to foreign countries (extradition or deportation), rendition is Spain's only option for removing suspects from the United States to face prosecution. Rendition involves the extrajudicial transfer -- or abduction -- of persons to stand trial in another jurisdiction.

Bush's use of rendition generated a lot of criticism among liberals who argued that it became a tool for outsourcing torture and secreting individuals to prolonged detention in CIA prisons. After the media and members of the Obama administration indicated that President Obama would likely continue using rendition, liberals struggled to distinguish Obama's practices from Bush's.

Many liberals argued that Obama's rendition would not present legal problems because he has ordered interrogators to comply with anti-torture laws and has directed the CIA to close its longterm detention facilities. I have have argued, by contrast, that liberal efforts to distinguish Obama's and Bush's use of rendition "elevate form over substance."

Since liberals and conservatives have defended rendition, I wonder how both political camps would contest Spain's abduction of former governmental officials to face prosecution. We may never get to hear their strained arguments, however, because Spain's criminal investigation is largely symbolic.


Decidere said...

Come on, Darren - even if you don't think any extrajudicial rendition is a good idea, there's obviously a difference between a document-based court-issued indictment as the reason, vs. someone lifted off the streets in Rawalpindi because someone claims he's a terrorist (now give my my $50 now) and moving that person around like so much meat to be tortured. Pinochet was grabbed while in the UK and went through the court system. If he had been picked up in Santiago, the result would have been the same. Binyam Mohamed spent an extra year in Gitmo because he wouldn't sign a "nope, never been tortured" waiver. And we wouldn't know about much of this if it weren't for some other country having a still functioning judicial system and remnant of a conscience.

Remember, over there even conservatives still think torture is wrong.

Darren Lenard Hutchinson said...

Decidere - I agree that there is "a" difference, but it is not always meaningful. In some jurisdictions, indictments are routinely granted. Also, when the "defendant" is not from the abducting country and is unpopular, it is not difficult to imagine politics clouding the "probable cause" analysis. So, I guess I would say that we should always vote for more due process - even if that means following the extradition process.

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