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Wed Jan 18, 2012, 10:08 PM

Spanish Court Resumes Gitmo Prosecution By Scott Horton

It remains unclear who might be prosecuted in the case; the opinion mentions a number of senior Bush Administration figures. Judge Ruz requested that prosecutors take a position on this issue before the case proceeds. While the Audiencia Nacional adopted a decision in January 2010 viewing the “intellectual authors” of the policy that permitted torture as the persons principally culpable, former Spanish attorney general Cándido Conde-Pumpido sharply disputed this perspective, arguing that only the persons who physically committed the acts of torture or abuse could be charged. WikiLeaks cables published in El País subsequently revealed that Conde-Pumpido had been the target of aggressive lobbying by American politicians and diplomats seeking his intervention to spike the Guantánamo prosecutions. Conde-Pumpido resigned as attorney general last month, and Spain’s new government is currently in the process of designating his successor.

Submissions by lawyers for the victims strongly suggest that they are pursuing a strategy focusing on claims against Major General Geoffrey Miller, a former Guantánamo camp commander whose practices were heavily scrutinized and criticized by Congress. The lawyers have repeatedly asked for Miller to be subpoenaed and compelled to give testimony, and one of the victims has testified that Miller was the person in charge at the time he was abused.

In separate developments, a French judge has also issued letters rogatory to the Justice Department, seeking permission to travel to Guantánamo and conduct inquiries there. Le nouvel Observateur reports that Judge Sophie Clément is investigating the claims of three Frenchmen formerly held at Guantánamo, who say they were tortured and subjected to other acts of barbarity during their detentions.

As Carol Rosenberg noted in a report this past Saturday, these cases reflect European courts’ increasing tendency to conclude that the Obama Administration’s “look forward, not back” policy means that U.S. prosecutors will not meaningfully investigate or act in cases involving the torture or mistreatment of prisoners during the Bush era. Since the crimes involved are subject to universal jurisdiction—as the United States has itself long argued—this means that other nations may now conduct their own investigations and open prosecutions. This means that, far from being over, the torture investigations will now enter a new phase—one that parallels the developments following Augusto Pinochet’s rule in Chile and after Argentina’s “dirty war,” when criminal investigations were pursued largely in European courts because amnesty arrangements prevented the pursuit of justice in domestic courts.


http://harpers.org/archive/2012/01/hbc-90008400

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