Accountability for U.S. Torture: Spain

At a Glance

Date Filed: 

April 27, 2009

Current Status 

Spanish court dismissed the universal jurisdiction case on U.S. torture (Court 5) on all grounds after a series of appeals in November 2016; the universal jurisdiction case on the “Bush Six” for U.S. torture (Court 6) is on appeal to the Spanish Constitutional Court.

Co-Counsel 

The European Center for Constitutional and Human Rights (ECCHR) and Gonzalo Boye, cooperating lawyer in Madrid

Client(s) 

Murat Kurnaz and Muhammed Khan Tumani

Case Description 

One hundred and fifty-five countries, including Spain and the United States, are party to the United Nations Convention Against Torture (CAT). Those countries have committed to investigating, prosecuting, and punishing torturers. Spain is additionally obligated under the Geneva Conventions to investigate allegations of torture and war crimes.

Spain Preliminary Investigation into U.S. Torture, Court 5

In a 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, Judge Baltasar Garzón of Spain opened a preliminary investigation into what he termed “an authorized and systematic plan of torture” in U.S. detention facilities in March 2009.  This action was brought under the principle of universal jurisdiction.

The Center for Constitution Rights filed a motion to join the investigation as a party (acusación popular). In this role, 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. CCR also represents two former Guantánamo detainees in the proceedings.

CCR assists the court by gathering and analyzing information about specific persons believed to have ordered, directed, conspired, aided and abetted, or otherwise participated directly, indirectly, or through command responsibility in the torture and other serious mistreatment of persons detained at U.S.-run detention facilities.

Investigation of the “Bush Six” (former U.S. government lawyers) with Respect to U.S. Torture, Court 6

In a criminal complaint filed in March 2009, several U.S. officials collectively known as the “Bush Six” were alleged to have participated in or aided and abetted the torture and abuse of persons detained at U.S.-run facilities. Defendants include: 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); Douglas Feith (former Under Secretary of Defense for Policy, Department of Defense); Alberto R. Gonzales (former Counsel to 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). This action was brought under the principle of universal jurisdiction. The responsibility for investigating this matter was referred to Judge Eloy Velesco.

The Center for Constitutional Rights and the Berlin-based European Center for Constitutional and Human Rights (ECCHR) have worked together to provide the court and Judge Velasco with expert opinions, detailed analysis of various U.S. government reports, memoranda, and investigations that support Spain’s jurisdiction over this investigation due to the utter failure of the United States government to conduct independent, thorough, and impartial investigations into the torture program and the ongoing failure of the Obama administration to prosecute those responsible. 

Case Timeline

November 16, 2016
[US Torture Program] Court dismisses the case on all grounds
November 16, 2016
[US Torture Program] Court dismisses the case on all grounds
November 17, 2015
[U.S. Torture Program] Appeals court dismisses appeal
November 17, 2015
[U.S. Torture Program] Appeals court dismisses appeal
July 22, 2015
[U.S. Torture Program] Appeal lodged against National Court on behalf of plaintiffs
July 22, 2015
[U.S. Torture Program] Appeal lodged against National Court on behalf of plaintiffs

CCR and co-counsel file an appeal against the Spanish National Court’s decision to halt the investigation.

July 17, 2015
[U.S. Torture Program] After appeal of lower court ruling that proceedings could move forward, Spain's National Court dismisses case for lack of jurisdiction
July 17, 2015
[U.S. Torture Program] After appeal of lower court ruling that proceedings could move forward, Spain's National Court dismisses case for lack of jurisdiction
In closing the investigation, Judge José de la Mata applies reforms to the universal jurisdiction law introduced by the current Conservative government that impose new limits on the jurisdiction of Spanish courts that require that cases involve suspects who are Spanish citizens or are living in Spain.
November 13, 2014
[U.S. Torture Program] Spain's National court upholds Judge Ruz's decision that case can proceed
November 13, 2014
[U.S. Torture Program] Spain's National court upholds Judge Ruz's decision that case can proceed
April 15, 2014
[U.S. Torture Program] Judge Ruz issues 31-page decision finding that investigation should proceed despite amendment to Spain's domestic law
April 15, 2014
[U.S. Torture Program] Judge Ruz issues 31-page decision finding that investigation should proceed despite amendment to Spain's domestic law
Judge Ruz bases his decision on Spain's international obligations as a signatory to the Convention Against Torture and the Geneva Conventions. He also renews his request to the United States to provide information about any investigations into the allegations in the U.S. The decision is appealed.
March 21, 2014
[U.S. Torture Program] Submission filed on behalf of Guantanamo torture plaintiffs, including CCR and ECCHR, on impact of change to Spain’s law
March 21, 2014
[U.S. Torture Program] Submission filed on behalf of Guantanamo torture plaintiffs, including CCR and ECCHR, on impact of change to Spain’s law
The submission argues that the case should proceed in light of Spain's obligations under the Geneva Conventions and Convention Against Torture to punish and redress war crimes and torture.
March 17, 2014
[U.S. Torture Program] Judge Ruz orders briefing on impact of amendment on pending cases in light of Spain's international treaty obligations
March 17, 2014
[U.S. Torture Program] Judge Ruz orders briefing on impact of amendment on pending cases in light of Spain's international treaty obligations
March 2014
Spain amends its universal jurisdiction law
March 2014
Spain amends its universal jurisdiction law
NGOs file responses to the amendment.
March 22, 2013
[Bush 6] Petition filed with Spanish Constitutional Court asserting violation of fundamental right to remedy
March 22, 2013
[Bush 6] Petition filed with Spanish Constitutional Court asserting violation of fundamental right to remedy
January 23, 2013
[Bush 6] Supreme Court notifies appellants appeal dismissed
January 23, 2013
[Bush 6] Supreme Court notifies appellants appeal dismissed
January 10, 2013
[U.S. Torture Program] Judge Ruz formally admits CCR and ECCHR into case as representatives of two former Guantanamo detainees, Murat Kurnaz and Mohammed KhanTumani
January 10, 2013
[U.S. Torture Program] Judge Ruz formally admits CCR and ECCHR into case as representatives of two former Guantanamo detainees, Murat Kurnaz and Mohammed KhanTumani
December 20, 2012
[Bush 6] Supreme Court issues opinion dismissing case
December 20, 2012
[Bush 6] Supreme Court issues opinion dismissing case
September 25, 2012
[Bush 6] CCR, ECCHR, and 25 additional international law organizations and experts submit amicus brief in support of association
September 25, 2012
[Bush 6] CCR, ECCHR, and 25 additional international law organizations and experts submit amicus brief in support of association
June 12, 2012
[Bush 6] Association for the Dignity of Male and Female Prisoners of Spain files appeal before Supreme Court of Spain
June 12, 2012
[Bush 6] Association for the Dignity of Male and Female Prisoners of Spain files appeal before Supreme Court of Spain
March 2012
[Bush 6] Appeal is dismissed by 12-3 vote
March 2012
[Bush 6] Appeal is dismissed by 12-3 vote
Majority and dissenting opinions are released in April 2012.
February 8, 2012
[U.S. Torture Program] CCR and ECCHR lodge declaration by former CCR attorney Gitanjali Guterriez detailing interrogation and torture of CCR client Guantánamo detainee Mohammed al Qahtani with court
February 8, 2012
[U.S. Torture Program] CCR and ECCHR lodge declaration by former CCR attorney Gitanjali Guterriez detailing interrogation and torture of CCR client Guantánamo detainee Mohammed al Qahtani with court
January 14, 2012
[U.S. Torture Program] Judge Ruz issues 19-page decision affirming that Spanish court has jurisdiction over case and ordering series of follow-up measures
January 14, 2012
[U.S. Torture Program] Judge Ruz issues 19-page decision affirming that Spanish court has jurisdiction over case and ordering series of follow-up measures
The court still has not received any responses to the letters rogatory from the U.S. or U.K. governments.
April 19, 2011
[Bush 6] Spanish Association for the Dignity of Prisoners files 139-page appeal of Judge Velasco's April 13 order
April 19, 2011
[Bush 6] Spanish Association for the Dignity of Prisoners files 139-page appeal of Judge Velasco's April 13 order
April 13, 2011
[Bush 6] Judge Velasco issues ruling, in which he "temporarily stays" case in Spain
April 13, 2011
[Bush 6] Judge Velasco issues ruling, in which he "temporarily stays" case in Spain
He also transfers the case 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."
April 13, 2011
[Bush 6] CCR and ECCHR release response to U.S. submission
April 13, 2011
[Bush 6] CCR and ECCHR release response to U.S. submission
In the response, the groups assert that Spain is the proper jurisdiction for this case and demonstrates that the U.S. has not, and will not, investigate or prosecute the defendants or the punishable acts.
April 2011
[U.S. Torture Program] Court dismisses appeal against Judge Garzon's order admitting Lahcen Ikassrien as victim-witness in case
April 2011
[U.S. Torture Program] Court dismisses appeal against Judge Garzon's order admitting Lahcen Ikassrien as victim-witness in case

The full court of the Criminal Division of the National Court rules on April 6, 2011 that the appeal should be dismissed. In light of Lahcen Ikassrien’s status as a Moroccan citizen and 13-year Spanish resident prior to 2001, and to ensure his presence, taking into account the seriousness of the crimes alleged in the complaint, Judge Ruz urges the Ministry of Security and the Ministry of Immigration and Emigration to issue Mr. Ikassrien temporary residency.

March 1, 2011
[Bush 6] U.S. submits response to letters rogatory issued by Judge Velasco
March 1, 2011
[Bush 6] U.S. submits response to letters rogatory issued by Judge Velasco
January 28, 2011
[Bush 6] Judge Velasco issues order setting March 1, 2011 deadline for U.S. to answer letters rogatory
January 28, 2011
[Bush 6] Judge Velasco issues order setting March 1, 2011 deadline for U.S. to answer letters rogatory
The order also requires the U.S. government to provide information on whether a prosecutor has been appointed to investigate the abuses at Guantánamo.
January 7, 2011
[Bush 6] CCR and ECCHR submit expert opinion that sets out legal basis for holding "Bush Six" criminally liable under international criminal law
January 7, 2011
[Bush 6] CCR and ECCHR submit expert opinion that sets out legal basis for holding "Bush Six" criminally liable under international criminal law
January 2011
[Bush 6] Spanish prosecutor submits response
January 2011
[Bush 6] Spanish prosecutor submits response
December 15, 2010
[Bush 6] Velasco issues order instructing prosecution to submit views on whether case should proceed or by which date U.S. must reply to letters rogatory
December 15, 2010
[Bush 6] Velasco issues order instructing prosecution to submit views on whether case should proceed or by which date U.S. must reply to letters rogatory
December 14, 2010
[Bush 6] CCR and ECCHR submit supplemental joint expert opinion
December 14, 2010
[Bush 6] CCR and ECCHR submit supplemental joint expert opinion
Both groups advise the court of recent factual developments in relation to the U.S. torture program, defendants, and actions by U.S. officials to interfere with these proceedings, as revealed through the recently released State Department cables.
October 18, 2010
[Bush 6] Judge Velasco issues order granting requests 1-3 of submission filed by Association for the Dignity of Prisoners of Spain
October 18, 2010
[Bush 6] Judge Velasco issues order granting requests 1-3 of submission filed by Association for the Dignity of Prisoners of Spain
Judge Velasco also notes the urgency of compliance with the letters rogatory sent to the United States in May 2009.
June 2010
[U.S. Torture Program] Case is reassigned to Judge Pablo Ruz
June 2010
[U.S. Torture Program] Case is reassigned to Judge Pablo Ruz
April 27, 2010
[Bush 6] Spanish Association for the Dignity of Prisoners, lead counsel for petitioners, files response to Judge Velsco's April 7 order, submitting that investigation should proceed
April 27, 2010
[Bush 6] Spanish Association for the Dignity of Prisoners, lead counsel for petitioners, files response to Judge Velsco's April 7 order, submitting that investigation should proceed
April 27, 2010
[U.S. Torture Program] CCR files motion to join current investigation as party (acusación popular)
April 27, 2010
[U.S. Torture Program] CCR files motion to join current investigation as party (acusación popular)
In the filing, 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, and other aspects of the detention and interrogation program. CCR expresses its intent 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.
April 27, 2010
[Bush 6] CCR and ECCHR file joint expert opinion addressing Judge Velasco’s order
April 27, 2010
[Bush 6] CCR and ECCHR file joint expert opinion addressing Judge Velasco’s order
CCR and ECCHR urge Judge Velasco 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.
April 7, 2010
[Bush 6] Judge Velasco issues order asking parties to brief effect of new amendment to Spanish law
April 7, 2010
[Bush 6] Judge Velasco issues order asking parties to brief effect of new amendment to Spanish law

He directs the parties to show whether the should continue. These amendments to Spanish Organic Law of the Judicial Power (Ley Orgánica del Poder Judicial), Articles 23 (4)-(5) 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."

January 26, 2010
[U.S. Torture Program] Judge Garzón issues decision finding Spain has jurisdiction over cases and complaints filed can proceed
January 26, 2010
[U.S. Torture Program] Judge Garzón issues decision finding Spain has jurisdiction over cases and complaints filed can proceed

The decision is based in part on the Spanish citizenship and Spanish residency of two of the victims, and also cites the previous relationship between the victims and Spain due to the Spanish request for their extradition. Garzón finds, however, that 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, CAT and the International Covenant on Civil and Political Rights. The decision also takes note of the letters rogatory previously sent to the U.S. and U.K. and the fact that neither country responded. In light of the change to the law, Judge Garzón finds the answers to those questions moot. Notably, Judge Garzón finds 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 concludes: “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.”

January 7, 2010
[U.S. Torture Program] CCR and ECCHR submit dossier regarding role of former commander of Guantánamo, Geoffrey Miller
January 7, 2010
[U.S. Torture Program] CCR and ECCHR submit dossier regarding role of former commander of Guantánamo, Geoffrey Miller
The dossier collects and analyzes the evidence demonstrating his role in the torture of detainees at Guantánamo 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.
October 29, 2009
[U.S. Torture Program] Judge Garzón issues decision admitting Lahcen Ikassrien as victim-witness in case
October 29, 2009
[U.S. Torture Program] Judge Garzón issues decision admitting Lahcen Ikassrien as victim-witness in case
May 4, 2009
[Bush 6] Judge Velasco sends international rogatory letter to U.S.
May 4, 2009
[Bush 6] Judge Velasco sends international rogatory letter to U.S.
The letter, sent pursuant to the U.S.-Spain Treaty on Mutual Assistance in Criminal Matters, asks the U.S. to confirm “whether the facts to which the complaint makes reference are or not now being investigated or prosecuted.”
May 2009
[U.S. Torture Program] Garzón issues letters rogatory to U.S. and U.K
May 2009
[U.S. Torture Program] Garzón issues letters rogatory to U.S. and U.K
The letters inquire whether any investigations are currently pending into the individual cases of the four plaintiffs, as well as into the possibility that the victims could initiate criminal proceedings in the U.S. or the U.K. Neither country responds.
April 27, 2009
[U.S. Torture Program] Judge Baltasar Garzón issues decision opening preliminary investigation
April 27, 2009
[U.S. Torture Program] Judge Baltasar Garzón issues decision opening preliminary investigation
Garzon seeks to investigate “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 U.S. detention facilities. Hamed Abderrahman Ahmed, Ikassrien Lahcen, Jamiel Abdul Latif Al Banna, and Omar Deghayes, former Guantánamo detainees, had been the subject of a criminal case in Spain, but were subsequently acquitted because of the torture and other forms of serious abuse to which they had been subjected during their detention and interrogations at Guantánamo; Judge Garzón previously issued the extradition requests for Al Banna and Deghayes. The decision presents six pages of facts related to the torture and mistreatment 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 includes “possible material and instigating perpetrators, necessary collaborators and accomplices.” Judge Garzón finds that the facts relate to violations under the Spanish Penal Code, the Third and Fourth Geneva Conventions, the Convention Against Torture (CAT), the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and the Spanish Organic Law of the Judicial Power (Article 23.4).
April 16, 2009
[Bush 6] Spain’s attorney general raises objections to continuance of case
April 16, 2009
[Bush 6] Spain’s attorney general raises objections to continuance of case
The, on April 17 2009, the Public Office Prosecutor of the National Court files a report requesting that the current complaint be discontinued.On April 23, 2009, the responsibility for investigating this matter is referred to Judge Eloy Velasco.
March 28, 2009
[Bush 6] Case is initially admitted by investigating judge of Fifth Court, Judge Garzón
March 28, 2009
[Bush 6] Case is initially admitted by investigating judge of Fifth Court, Judge Garzón
March 17, 2009
[Bush 6] Spanish attorneys file criminal complaint against “Bush Six”—high-level U.S. officials alleged to have participated or aided and abetted torture and other serious abuse of persons detained at U.S.-run facilities at Guantánamo and other overseas locations
March 17, 2009
[Bush 6] Spanish attorneys file criminal complaint against “Bush Six”—high-level U.S. officials alleged to have participated or aided and abetted torture and other serious abuse of persons detained at U.S.-run facilities at Guantánamo and other overseas locations
Named defendants include: 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); Douglas Feith (former Under Secretary of Defense for Policy, Department of Defense); 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).They are alleged to have committed numerous violations of international law, including violations of the Geneva Conventions and Convention Against Torture.