By Katherine Gallagher, Senior Attorney with the Center for Constitutional Rights and Vice President of the International Federation for Human Rights (FIDH)
Barack Obama declared at the start of his presidency that, when it comes to holding U.S. officials accountable for torture, we must "look forward not back." While he has failed to close Guantánamo or usher in a new era of government transparency, Obama has managed to keep this one promise: fostering impunity for torture.
The president's perspective is distorted. In order to move forward, a society must first look back; the logic of justice demands that providing redress for wrongs -- including by holding individuals accountable -- is necessary in order to ensure they are not repeated. Survivors of U.S. torture have had to turn elsewhere to seek that redress. This week, as Spain wrestles with its obligations to hold U.S. torturers accountable for egregious crimes committed in the name of the "war on terror," France may be taking a step toward justice.
This should not be surprising to the United States. After all, during the drafting of the United Nations Torture Convention in 1978, it was the United States that stepped forward in defense of the Convention's proposed universal jurisdiction provision -- a provision that holds that some crimes such as torture, genocide, and slavery are so egregious that they transcend borders and obligate all nations to take action to punish those responsible in an effort to prevent future crimes. The U.S. argued convincingly that, in situations where torture was a part of State policy, the respective government would not be "interested in extradition and prosecution of its own officials accused of torture." At the time, the U.S. must not have imagined that it was speaking about its future self.
Spain has enjoyed a well-earned reputation for taking these international law obligations seriously. In 1998, Spanish judge Baltasar Garzón famously issued an arrest warrant for Augusto Pinochet to face charges for serious international law violations that had occurred in Chile in the 1970s and 80s. This not only opened a new chapter for justice in Chile, but sparked a movement for international accountability, with Spain as its leader. That is why, a decade later, two cases related to U.S. torture were filed in Spanish courts.
The first suit, filed by former detainees, charged six lawyers from the Bush administration for their roles in creating and providing legal cover for the U.S. torture program in Guantánamo and other detention sites. A Spanish judge asked the U.S. government three times if there was something it was doing about the torture committed by its citizens -- so that the Spanish Court would not have to. In response, the U.S. provided a document setting out some general steps it had taken to address torture allegations. Notably, however, this submission lacked any concrete steps to hold "the Bush Six" -- a group that included authors of the infamous torture memos, John Yoo and Jay Bybee -- criminally responsible for their roles. Disappointingly, the Spanish judge deferred his criminal investigation in favor of U.S. (in)action anyway. A petition challenging that deferral is currently pending before the Spanish Constitutional Court.
Judge Garzón opened a second case in 2009 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," in U.S. detention facilities. This investigation remains open in the Spanish court.
As a result of recent developments, both of these cases are in danger of being closed. Reportedly in response to economic and political pressure from China stemming from an investigation into genocide in Tibet, the Spanish parliament is debating abandoning its universal jurisdiction law, adding so many restrictions as to render it toothless. The change would allow cases to proceed only when the court establishes certain nationality or residency links to Spain, which would effectively take the "universal" out of universal jurisdiction.
We will know soon enough whether the long-term interests of justice trump short-term economic interests in Spain. Regardless of what happens in Spain, an ongoing investigation in France shows that the fight for accountability will not end quietly. There, investigating magistrates have been slowly building a criminal case against the individuals responsible for the torture of three French citizens in Guantánamo. The U.S.-based Center for Constitutional Rights and the European Center for Constitutional and Human Rights have just filed a subpoena request in that case for the former commander of Guantánamo, Geoffrey Miller.
Meanwhile, other countries have not enjoyed the same level of immunity from scrutiny as the United States. Canada now finds itself before an international treaty body, the Committee Against Torture, for its failure to investigate and prosecute George W. Bush during a 2011 visit to Canada, and European countries are being called to answer, both domestically and before the European Court of Human Rights, for their complicity in the Bush-era global torture program.
Obama was wrong in 2009 when he said "nothing will be gained by spending our time and energy laying blame for the past."
The international system recognizes that in order to heal the tens of thousands of people subjected to extreme physical and mental suffering at U.S. detention sites in Afghanistan, at Guantánamo, or in secret "black sites", all states must recognize the actions for the crimes they are and provide accountability. Human rights groups including mine are urging the Spanish parliament to reject the proposed amendments, which will not only place Spain in breach of its international obligations, but offer the prospect of impunity for serious crimes.
Any other course of action risks leaving George W. Bush, Dick Cheney and Donald Rumsfeld free to continue to shore up their legacies with self-congratulatory memoirs, instead of having to defend their records in a court of law. And any other course of action leaves survivors of torture at the hands of the U.S. with nowhere to turn.
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