The Laws of Rule


Law, Politics, Podcasts


Forum Shopping the Bush Lawyers

Jan 18, 2011

Leading public interest law NGOs from the U.S. and Europe have petitioned a court in Spain to prosecute former Bush administration lawyers for their alleged role in justifying torture. A brief submitted last week to the Spanish central court by the Center for Constitutional Rights in New York and the European Centre for Constitutional and Human Rights (ECCHR) based in Berlin says “Providing Legal Advice that Justifies and Leads to War Crimes Is Criminal.”

The filing by CCR and ECCHR begins with a quote from Nuremerg Military Tribunal in 1951: “The charge, in brief, is that of conscious participation in a nationwide governmentally organized system of cruelty and injustice, in violation of the laws of war and of humanity, and perpetrated in the name of law.” Hard to argue with the sentiment. After all, the Bush lawyers were allegedly central in constructing the theoretical legal justification for such practices as waterboarding and indefinite detentions at Guantanamo Bay.

Still, the Obama administration has indeed argued with the sentiment, lobbying foreign officials to drop these and similar cases (LoR previously reported on the Wikileaks revelations of attempts by U.S. diplomats to influence an investigation by a Spanish prosecutor into the death of a Spanish journalist in Iraq). The Administration has made clear that no one in the CIA or other agencies will be prosecuted for following orders to torture, allegedly authorized by key members of the Bush Administration leadership, as detailed by Mark Danner in the NYRB.

Writing in the The Nation Nancy Goldstein summarizes the politics surround the case in Spain, noting that “Like the Nazi government’s lawyers, the Bush Six consciously distorted the law, knowing that the opinions they wrote justifying these actions would enable torture and other crimes.” This is not the first time that CCR has tried to go after those in the Bush administration allegedly involved in managing the regime of rendition-for-torture. And last week’s filing in Spain follows attempts by ECCHR to pursue cases against former U.S. Defense Secretary Donald Rumsfeld in German courts, about which you can find out more here. For those interested in an historical perspective on why it matters that the legal advisors to torturers are held to account, check out Professor Lisa Hajjar’s still relevant piece on the history of regulating torture, written during the Bush dark ages before many of the revelations about waterboarding were confirmed.

Unfortunately, for the 48 detainees still held at Guantanamo Bay, the Obama administration is keen on a form of indefinite detention that is unlikely to be challenged by the now Republican Congress or, well, anybody. Since they have in effect been permanently denied habeus corpus and a fair trial, it is hard to see what is happening as anything other than the dropping of the Gitmo detainees down a rather deep hole of illegality, both under U.S. law and international law. Remember, even the Bush administration accepted that Common Article 3 Geneva Conventions applied to those detained in the war on terror. Here’s what it says:

“…the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

Commenting on the Obama Administration’s move, Firedoglake’s David Dayen wrote “This is basically indefinite detention, an unheard-of policy prior to 9-11, with a bit of a smiley face.” Which begs the question: After John Yoo, who will be the poster-boy for indefinite detention under Obama?

Image: Lance Page / t r u t h o u t; Adapted: YooTube, cleanzor)