Saturday, March 28, 2009

Viva L' Espana

From the Guardian:

Criminal proceedings have begun in Spain against six senior officials in the Bush administration for the use of torture against detainees in Guantánamo Bay. Baltasar Garzón, the counter-terrorism judge whose prosecution of General Augusto Pinochet led to his arrest in Britain in 1998, has referred the case to the chief prosecutor before deciding whether to proceed.

The case is bound to threaten Spain's relations with the new administration in Washington, but Gonzalo Boyé, one of the four lawyers who wrote the lawsuit, said the prosecutor would have little choice under Spanish law but to approve the prosecution.

"The only route of escape the prosecutor might have is to ask whether there is ongoing process in the US against these people," Boyé told the Observer. "This case will go ahead. It will be against the law not to go ahead."

In truth, Eric Holder and the Justice department have little choice under US law but to prosecute the torturers. Under Article 4 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which is the supreme law of the land in the US:
  1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
  2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.
The article names the alleged torturers as

Alberto Gonzales, a former White House counsel and attorney general; David Addington, former vice-president Dick Cheney's chief of staff; Douglas Feith, who was under-secretary of defence; William Haynes, formerly the Pentagon's general counsel; and John Yoo and Jay Bybee, who were both senior justice department legal advisers.

And then there is this

Obama administration officials have confirmed that they believe torture was committed by American interrogators. The president has not ruled out a criminal inquiry, but has signalled he is reluctant to do so for political reasons.

How exactly is it that the President can decide whether a criminal act is prosecuted or not. I understand he has the right to pardon but from this it seems he is taking on the right to decide whether to prosecute. It seems the days of the Attorney General being the lawyer for the President, rather than the lawyer for the people, did not end with Alberto Gonzales.

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