It is an interesting legal question: Can a Spanish criminal court prosecute U.S. officials for laying the groundwork for the torture of Spanish citizens held at Guantanamo Bay? A Spanish judge, Baltasar Garzon, has ordered an inquiry into whether six senior Bush administration officials -- including former Atty. Gen. Alberto R. Gonzales -- were responsible for "an authorized and systematic plan for torture," according to a court document. Times editorial writer Marjorie Miller asked British barrister and law professor Philippe Sands, author of the book "Torture Team: Rumsfeld's Memo and the Betrayal of American Values," to explain the legal underpinnings of such a procedure.
The Spanish case targets the government lawyers -- including former Atty. Gen. Alberto R. Gonzales -- whose legal opinions laid the groundwork for so-called harsh interrogations. Why the lawyers?
When the administration decided to move to aggressive techniques, it seems they turned to lawyers who could be relied upon to sign on. They systematically excluded from the process those lawyers who would have given contrary advice. But for the lawyers, these abuses, this torture, would not have happened. So the administration got bad advice from lawyers; they didn't have to take it. Why does that make the lawyers guilty?
The lawyers appear to have been part of a plan to subvert the law. First the administration fixed on a policy of cruelty, then they found the lawyers to sign off on it. On my reading, the lawyers acted not in the service of providing fearless, independent legal advice, but provided support to a predetermined policy of abuse. In that way, they became complicit in a policy of torture. Is there legal precedent in going after the lawyers?
There is legal precedent. The precedent includes U.S. military tribunals in Germany in the 1940s. More recently, you've got actions in Britain, Spain and the United States where lawyers, for example, designed money-laundering schemes intended to subvert rules that criminalize money laundering. There are plenty of cases to show that, where lawyers act in a way to subvert the rules, they can themselves become complicit in crime. Still, why not the torturers or the top political leaders?
I focused on the lawyers because I wanted to understand the circumstances in which they became complicit, but of course it goes even higher. As of April 29, the case in Spain has taken a broader and more extensive turn. Judge Baltasar Garzon will look at the Bush Six and all those individuals who bear responsibility for the policy of torture and abuse. The case will look not just at the "framers of the legal decision," as President Obama put it. It will look at those higher up and perhaps also those lower down who contributed to the implementation of the decision.
Why is Spain involved?
It is based on abuse allegedly meted out on five Spanish nationals or residents. The legal basis in Spanish law is the prohibition under the 1984 Torture Convention and of the Geneva Conventions of torture and of inhuman and degrading treatment. The United States is a party to those treaties and, therefore, is bound by its commitments. The complaint is based squarely on these international laws, as well as Spanish laws.
Would legal action in the U.S. take precedence over the Spanish case?
That's a crucial question. I have no doubt that if the United States were to carry out its own investigation, foreign judges would back off. The question, therefore, is what sort of investigation would achieve that objective? Does it have to be a formal criminal investigation, or could it be a congressional or other inquiry that might have the power to make certain recommendations? I think it's an open question, but the reality is that if the Obama administration were to give a green light to a full non-criminal inquiry, a sort of blue ribbon truth commission that some have proposed, and if that group had the power to make recommendations as to whether crimes were committed, it would probably have the effect of suspending foreign investigations, at least until it announced its conclusions. Why did you take on this issue?
I am a lawyer. I teach international law, but I am also a practicing lawyer. I spend half my time advising governments on issues, some of which are extremely sensitive. I see my role as a lawyer to advise government what the limits of their actions are: to help them achieve what they want to achieve, but not just to sign on the dotted line. I am acutely aware of the responsibility of lawyers. What the documents that emerged suggested to me was that those lawyers had abdicated their professional responsibilities. I wanted to understand how that happened. I could not understand how these lawyers essentially had rubber-stamped a policy of cruelty. In my view, they had ceased to act as lawyers.
Philippe Sands will appear in conversation with constitutional lawyer Bruce Fine on May 7 at UCLA's Hammer Forum: Restoring Checks and Balances and Rule of Law. http://hammer.ucla.edu/calendar/ detail/year/2009/month/5/day/7/ type/program/id/177