Spanish government lawyers have changed their tune and are now opposing a criminal complaint against six former Bush administration officials who were accused of violating international law by facilitating the use of torture. But the final decision on whether to begin a criminal investigation will be made by an investigating judge (most likely Pinochet-busting Baltasar Garzón, thank god).
Spanish prosecutors initially gave the green light for legal action, according to lawyers who saw a draft of their review. The draft said that Spain had jurisdiction under international law, including under the United Nations Convention Against Torture, and that there was enough evidence of wrongdoing for a criminal investigation to proceed, those who saw the legal opinion said. In addition, five former Guantánamo inmates, three of them Spanish citizens and two Spanish residents, have said that they were tortured.
But that green light turned red when Spain’s attorney general, Cáandido Conde-Pumpido, told journalists that he was opposed to an investigation. He argued that the proper forum for any criminal actions would be American courts. And he insisted that the focus of the investigation should be on the interrogators who actually mistreated detainees-- which puts him at odds with Obama, who has said that the CIA operatives who actually performed torture would not be prosecuted.
Obama has left open the possibility that others higher in the food chain could still face criminal penalties, however. I think it was a mistake to publicly leave the CIA operatives off the hook-- without the weight of prosecution over their heads, how will anybody pressure them to turn on the higher-ups? Either way, somebody do something-- and I say if the U.S. doesn't make moves soon to prosecute illegal torture, then let Spain take care of business.
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