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Seeking a venue in which to hold former high-ranking U.S. officials accountable for their individual roles in directing, implementing or planning the U.S. torture program, victims and human rights advocates filed criminal complaints in Spain in 2009.
Currently, there are two investigations related to the U.S. torture program pending in the National Court of Spain: in Court 5, there is an open investigation into “an authorized and systematic plan of torture and ill-treatment on persons deprived of their freedom without any charge and without the basic rights of any detainee, set out and required by applicable international conventions,” in US detention facilities. In Court 6, Judge Velasco has stayed proceedings in a case filed agains the "Bush Six" for torture and war crimes, and referred the case to the United States Department of Justice for it to be continued; Judge Velasco's decision was appealed on April 19, 2011. Following dismissal of the appeal in March 2012, the victims appeal to the Spanish Supreme Court in June 2012. On January 21, 2013, the Supreme Court, Division Two, notified the appellants that the appeal had been dismissed. On March 22, 2013 a petition for review was filed with the Spanish Constitutional Court.
The Center for Constitutional Rights has made filings in both, in an effort to ensure that victims have their day in court and that the individuals behind the program that tortured and otherwise seriously abused detainees are prosecuted.
Below is a summary of the two pending investigations.
On April 27, 2009, Judge Baltasar Garzón issued a decision opening a preliminary investigation into what he termed “an authorized and systematic plan of torture and ill-treatment on persons deprived of their freedom without any charge and without the basic rights of any detainee, set out and required by applicable international conventions,” in US detention facilities. This decision related to the alleged torture and abuse of four former Guantánamo detainees: Hamed Abderrahman Ahmed, Ikassrien Lahcen, Jamiel Abdul Latif Al Banna and Omar Deghayes. All four men had previously been the subject of a criminal case in Spain, but were subsequently acquitted because of the use of torture and other forms of serious abuse to which they had been subjected during their detention and interrogations at Guantánamo; Judge Garzón had previously issued the extradition requests for Messrs Al Banna and Deghayes. Mr Ahmed is a Spanish citizen and Mr Ikassrien had been a Spanish resident for more than 13 years. The decision presents six pages of facts related to the torture and abuse the four men suffered including being held in cells made of chicken-wire in intense heat; being subjected to constant loud music, extreme temperatures and bright lights; constant interrogations without counsel; sexual assault; forced nakedness; threats of death; and severe beatings. The preliminary investigation did not name potential defendants, but included “possible material and instigating perpetrators, necessary collaborators and accomplices.” Judge Garzón found that the facts relate to violations under the Spanish Penal Code, the Third and Fourth Geneva Conventions, the Convention Against Torture, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and the Organic Law of the Judicial Power (Article 23.4).
On May 15, 2009, Judge Garzón issued Letters Rogartory to the United States and the United Kingdom inquiring whether any investigations are currently pending into the individual cases of the four plaintiffs. To date, neither country has responded.
October 29, 2009, Judge Garzón issued a decision admitting Lahcen Ikassrien as a victim-witness in the case.
On January 27, 2010, Judge Garzón issued a decision in which found that there exists jurisdiction over these cases in Spain and the complaints filed could proceed. Judge Garzón based this finding in part on the Spanish citizenship and residency in Spain of two of the victims, and also cited the previous relationship between the victims and Spain due to the request for their extradition issued by Spain. He found, however, that in the even in the absence of these links between the victims and Spain, jurisdiction over the case exists under the revised law (Organic Law 1/09 (November 3, 2009) (specifically, provisions (a) and (h)) because the violations alleged constitute crimes against humanity and are covered by international treaties, including the Third and Forth Geneva Conventions, the Convention Against Torture and the ICCPR. The decision also takes note of the Letters Rogatory that were sent to the United States and United Kingdom on June 15, 2009, inquiring about possible investigations into these cases as well as into the possibility that the victims could initiate criminal proceedings themselves. Neither country responded, and in light of the change to the law, Judge Garzón found the answers to those questions moot. Notably, Judge Garzón found that the burden lies on the defendant to establish that jurisdiction is not proper, and not upon the victims to prove that it is in cases raising such claims: “it cannot be accepted that the court or the victim have to perform detective work to know where there is a procedure open and to try to establish a negative fact.” Judge Garzón concluded: “It seems that when it is a matter of alleged offenses of torture and mistreatment carried out systematically and intended for a purpose, namely breaking the will of the victim while at the same time depriving him of the most elemental rights by means of techniques prohibited in national and international law, there is no doubt that they are included in article 23.4.”
On April 27, 2010, the Center for Constitution Rights filed a motion to join the current investigation as a party (acusación popular). CCR seeks to assist the court by providing analysis of various U.S. government reports, memoranda and investigations, providing factual information regarding the treatment of specific persons detained at Guantánamo and other locations, as appropriate, and other aspects of the detention and interrogation program. CCR further intends to assist in gathering and analyzing information about specific persons believed to have ordered, directed, conspired, aided and abetted, or other wise participated directly, indirectly or through command responsibility in the torture and other serious mistreatment of persons detained at U.S. run detention facilities.
As of June 2010, Judge Ruz is overseeing this case.
On January 7, 2011, CCR and ECCHR submitted a dossier regarding former commander of Guantanamo, Geoffrey Miller, which collects and analyzes the evidence demonstrating his role in the torture of detainees at Guantanamo and in Iraq. Based on the information in the dossier, CCR and ECCHR request that a subpoena be issued for Miller to testify before Judge Ruz.
On April 13, 2011, Judge Ruz noted the dismissal of the appeal against Judge Garzon's order admitting Lahcen Ikassrien (a Moroccan citizen and 13-year Spanish resident prior to 2001) as a victim-witness in this case. The Full Court of the Criminal Division of the National Court ruled on April 6, 2011 that the appeal should be dismissed. In light of Mr. Ikassrien's status in the proceedings and to ensure his presence, and taking into account the seriousness of the crimes alleged in the complaint, Judge Ruz urged the Ministry of Security and the Ministry of Immigration and Emigration to issue Mr. Ikassrien temporary residency.
On January 14, 2012, having not received any responses to his letters rogatory from the US or UK governments, Judge Ruz issued a 19-page decision affirming that the Spanish court has jurisdiction over the case and ordering a series of follow-up measures.
On February 8, 2012, a declaration by attorney Gitajali Guterriez detailing the interrogation and torture of Guantanamo detainee Mohammed al Qahtani was lodged with the court.
On January 10, 2013, Judge Ruz formally admitted CCR and ECCHR into the case as representatives of two former Guantanamo detainees, Murat Kurnaz and Mohammed KhanTumani,
On March 17, 2009, a criminal complaint was filed against David Addington (former Counsel to, and Chief of Staff for, former Vice President Cheney); Jay S. Bybee (former Assistant Attorney General, Office of Legal Counsel (OLC), U.S. Department of Justice (DOJ)); Douglas Feith (former Under Secretary of Defense for Policy, Department of Defense (DOD)); Alberto R. Gonzales (former Counsel to former President George W. Bush, and former Attorney General of the United States); William J. Haynes (former General Counsel, DOD); and John Yoo, (former Deputy Assistant Attorney General, OLC, DOJ), collectively known as the “Bush Six,” in which each was alleged to have participated or aided and abetted the torture and other serious abuse of persons detained at U.S. run-facilities at Guantánamo and other overseas locations. They are alleged to have committed numerous violations of international law, including violations of the Geneva Conventions and Convention Against Torture.
On March 28, 2009, the case was initially admitted by the competent investigating judge of the Fifth Court, Judge Garzón. On April 16 2009, Spain’s Attorney-General raised objections to the continuance of the case. Subsequently, on 17 April 2009, the Public Office Prosecutor of the National Court filed a report requesting that the current complaint be discontinued and that on April 23, 2009, the responsibility for investigating this matter was referred to Judge Eloy Velasco.
On May 4, 2009, Judge Velasco, pursuant to the US-Spain Treaty on Mutual Assistance in Criminal Matters, sent an International Rogatory Letter to U.S. asking them to confirm “whether the facts to which the complaint makes reference are or not now being investigated or prosecuted.”
On April 7, 2010, Judge Velasco issued an order asking the parties to brief the effect of the amendment to the Spanish Organic Law of the Judicial Power (Ley Orgánica del Poder Judicial), Articles 23 (4)-(5) on the investigation, and whether the investigation should continue. These amendments require that there be some connection to Spain for various international crimes in order for the court to have jurisdiction, “[n]otwithstanding whatever may be provided in other treaties and international conventions ratified by Spain."
On April 27, 2010, CCR filed a joint expert opinion with the Berlin-based European Center for Constitutional and Human Rights (ECCHR) addressing Judge Velasco’s order. CCR and ECCHR urged him to retain jurisdiction over the investigation due to the failure of the United States to conduct independent, thorough or impartial investigations into the torture program and the ongoing failure of the Obama administration to prosecute those responsible.
On April 27, 2010, the Spanish Association for the Dignity of Prisoners filed its response to Judge Velsco's April 7th Order, submitting that the investigation should proceed.
On October 18, 2010, Judge Velasco issued an order granting Requests 1-3 of the submission filed by the Association for the Dignity of Prisoners of Spain on April 27, 2010. Judge Velasco also noted the urgency of compliance with the Letters Rogatory sent to the United States in May 2009.
On December 14, 2010, CCR and ECCHR submitted a Supplemental Joint Expert Opinion, advising the Court of recent factual developments in relation to the US torture program, defendants and actions by U.S. officials to interfere with these proceedings, as revealed through the recently released State Department cables.
On December 15, 2010, in response to the Supplemental Joint Expert Opinion, Judge Velasco issued an order in which he instructed the Prosecution to submit its views on whether the case should proceed or by which date the United States must reply to the Letters Rogatory.
On January 7, 2011, CCR and ECCHR submitted an expert opinion that sets out the legal basis for holding the "Bush Six" criminally liable under international criminal law, and summarize the key evidence against the defendants.
On January 28, 2011, Judge Velasco issued an order which set a deadline of March 1, 2011 for the United States to answer the letters rogatory, and inform him whether a prosecutor has been appointed to investigate the abuses at Guantanamo.
A letter dated March 1, 2011 and marked received on March 4, 2011 was submitted by the U.S. in response to the letters rogatory issued by Judge Velasco.
On April 13, 2011, CCR and ECCHR released their response to the U.S. submission, in which they set forth that Spain is the proper jurisdiction for this case and demonstrate that the U.S. has not, and will not, investigate or prosecute the defendants or the punishable acts.
On April 13, 2011, Judge Velasco issued a ruling, in which he "temporarily stayed" the case in Spain, and transferred it to the U.S. Department of Justice "for it to be continued, urging it to indicate at the proper time the measures finally taken by virtue of this transfer of procedure."
On April 19, 2011, a 139-page appeal of Judge Velasco's April 13th order was filed on behalf of the Spanish Association for the Dignity of Prisoners.
In March 2012, by a vote of 12-3, the appeal was dismissed. Majority and dissenting opinions were released in April 2012.
On 12 June 2012, the Association for the Dignity of Male and Female Prisoners of Spain filed its appeal before the Supreme Court of Spain.
On 25 September 2012, CCR, ECCHR, and 25 additional international law organizations and experts, submitted an amicus brief in support of the Association.
On January 21, 2013, the Supreme Court, Division Two, notified the appellants that the appeal had been dismissed. The appellants have 30 days to file an appeal with the Spanish Constitutional Court.
On March 22, a petition was filed with the Spanish Constitutional Court, asserting a violation of the fundamental right to a remedy.
For more information on CCR’s work to hold U.S. officials accountable using universal jurisdiction, see: http://www.ccrjustice.org/case-against-rumsfeld. See also, Katherine Gallagher "Universal Jurisdiction in Practice: Efforts to Hold Donald Rumsfeld and Other High-level United States Officials Accountable for Torture," November 2009, in the Journal of International Criminal Justice.
Following the admission by former president George W. Bush that he authorized torture, in his memoir "Decision Points," CCR and ECCHR issued this joint statement.
Katherine Gallagher, U.S. Torture Program Architects Must Face Justice, My FDL, October 10, 2012