Spanish Prosecutors Moving Forward With Torture Investigation

Scott Horton reports that the wheels of justice continue to move forward in Spain:

Spanish prosecutors have decided to press forward with a criminal investigation targeting former U.S. Attorney General Alberto Gonzales and five top associates over their role in the torture of five Spanish citizens held at Guantánamo, several reliable sources close to the investigation have told The Daily Beast. Their decision is expected to be announced on Tuesday before the Spanish central criminal court, the Audencia Nacional, in Madrid. [...]

But prosecutors will also ask that Judge Garzón, an internationally known figure due to his management of the case against former Chilean dictator Augusto Pinochet and other high-profile cases, step aside. The case originally came to Garzón because he presided over efforts to bring terrorism charges against the five Spaniards previously held at Guantánamo. Spanish prosecutors consider it “awkward” for the same judge to have both the case against former U.S. officials based on the possible torture of the five Spaniards at Guantánamo and the case against those very same Spaniards. A source close to the prosecution also noted that there was concern about the reaction to the case in some parts of the U.S. media, where it had been viewed, incorrectly, as a sort of personal frolic of Judge Garzón. Instead, the prosecutors will ask Garzón to transfer the case to Judge Ismail Moreno, who is currently handling an investigation into kidnapping charges surrounding the CIA’s use of facilities as a safe harbor in connection with the seizure of Khalid el-Masri, a German greengrocer who was seized and held at various CIA blacksites for about half a year as a result of mistaken identity.

I’m glad to see this happen, as I think the Spanish tradition of moving aggressively to find rationales to prosecute violators of international humanitarian law has had a good impact on the world. But as Hilzoy says, it’s a bit ridiculous that we can’t have this investigation in the United States. Torture is illegal in the United States, and we have obligations under treaties we’ve signed to investigate and prosecute cases of torture. Besides which, there’s no reason the scope of investigations should be arbitrarily limited to cases that have a Spanish angle.

Recall that Bush administration officials have stated, in public, that they have ordered waterboarding. And waterboarding has traditionally held to be torture by both the United States government and international law. The defense has several arguments to make on its behalf. One is that tradition is mistaken, and waterboarding isn’t really torture because it doesn’t lead to permanent organ damage. Another is that the illegality of torture is a sham, because neither congress nor international treaties can bind the president’s inherent power to torture. A third is some kind of exigent circumstances defense related to ticking time bombs or some such. I don’t, personally, take any of those arguments very seriously.

But a lot of people blogging for National Review or on talk radio seem to. And they deserve to have their day in court, to be put before a judge and a jury so we can have a proper decision about what is and isn’t illegal in the United States. Instead this issue has kind of lingered in the political chattering classes where if you say that the “extreme interrogations” were wise and good you count as a proper conservative motivated by Christian values while if you rant on about torture and international law you’re fitted for a tinfoil hat, and the sober-minded and sensible position is to be hand-wavingly against both torture and the investigation of torture. Thus, it all winds up in the hands of the Spanish, which is nuts.