Thursday, April 16, 2009

No Prosecution of the "Bush Six" in Spain

Despite earlier reports, it now appears unlikely that the "Bush Six" will face prosecution in Spain for allegedly violating international human rights law. In March, a human rights attorney requested that Spanish Judge Baltasar Garzon consider filing charges against officials from the Bush administration who authorized the use of torture against terrorism detainees. Judge Garzon requested advice from Attorney General Candido Conde-Pumpido. Today, Conde-Pumpido stated that any prosecution of the individuals should take place in the United States:
"If there is a reason to file a complaint against these people, it should be done before local courts with jurisdiction, in other words in the United States . . . ."
Copnde-Pumpido also disputed whether the individuals violated international law by providing a legal justification for torture, rather than actually committing torture:
"If one is dealing with a crime of mistreatment of prisoners of war, the complaint should go against those who physically carried it out. . . ."
Many Liberals Want Prosecutions, Obama and Panetta Do Not
Many liberals have called upon the Obama administration to pursue criminal charges against Bush-era officials who authorized torture. Both President Obama and CIA Director Leon Panetta, however, have firmly stated their opposition these demands.

Because the Obama administration has already stated its opposition to torture prosecutions, the Spanish criminal investigation is largely symbolic. The prospect of criminal charges against Bush-era officials, nevertheless, caused jubilation among many liberals.

Spain Has Very Few Options for Transferring the Bush Six Out of the United States
Because the Obama administration opposes prosecution of the Bush Six, the United States probably would not grant any requests for extradition from Spain. Although Spain could pursue extradition in another jurisdiction if the Bush Six traveled outside of the United States, it remains unclear whether another country would grant extradition requests over the objection of the Obama administration.

Ironically, Spain could presumably use rendition and abduct the Bush Six to "justice." This option, however, is purely theoretical -- i.e., it would never happen -- despite the fact that conservatives and apparently many liberals do not disagree with government-sponsored international kidnappings.

Obama Administration in Contact With Spain Over the Investigation
Earlier this week, human rights lawyer Scott Horton published an article in the Daily Beast which states that indictments of the Bush Six are forthcoming. If Horton had accurate information when he wrote his article, Conde-Pumpido apprently stepped in and altered the course of events. Although the court could still issue indictments, this path seems unlikely given Conde-Pumpido's statements.

Horton's article also states that the Obama administration has remained in close contact with Spanish officials regarding the criminal investigation. It is unclear, however, whether the United States pressed Spain not to issue indictments or to pursue prosecutions.

The so-called Bush Six includes: former Attorney General Alberto Gonzales; former Undersecretary of Defense Douglas Feith; former Vice President Dick Cheney's Chief of Staff, David Addington; former Department of Justice attorneys John Yoo and Jay S. Bybee; and Pentagon lawyer William Haynes.

Consider This: The Politics
In the absence of overwhelming domestic public support for the prosecution of senior governmental officials in a foreign court, it seems highly unlikely that President Obama (or any other president) would consent to extradition. If substantial public support for prosecution existed, then the prosecutions would take place domestically.

President Obama has probably decided that prosecuting the Bush Six or transferring the group to another country for trial would be too polarizing and politically damaging and that a substantial part of the public would not favor such a course of conduct. Also, it is possible that President Obama does not want to establish a precedent that his sucessor could use against him and members of his staff in a display of brutal partisan politics. In sum, Obama is doing what is politically safe. What president would not?

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