Spain considers prosecuting U.S. officials for torture

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.

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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?