Home » Armed Conflict, Human Rights, Intelligence, International Law, Supreme Court

Bush lawyers being investigated by Spanish national security court

Former Deputy Assistant Attorney General John Yoo

Former Deputy Assistant Attorney General John Yoo

My dear friend Steve Bainbridge brings a very interesting development to my attention. Scott Horton writes in Harpers:

Spain’s national newspapers, El País and Público reported that the Spanish national security court has opened a criminal probe focusing on Bush Administration lawyers who pioneered the descent into torture at the prison in Guantánamo. The criminal complaint can be examined here. Público identifies the targets as University of California law professor John Yoo, former Department of Defense general counsel William J. Haynes II (now a lawyer working for Chevron), former vice presidential chief-of-staff David Addington, former attorney general and White House counsel Alberto Gonzales, former Assistant Attorney General Jay Bybee, now a judge of the United States Court of Appeals for the Ninth Circuit, and former Undersecretary of Defense Doug Feith.

The case was opened in the Spanish national security court, the Audencia Nacional. In July 2006, the Spanish Supreme Court overturned the conviction of a former Spanish citizen who had been held in Guantánamo, labeling the regime established in Guantánamo a “legal black hole.” The court forbade Spanish cooperation with U.S. authorities in connection with the Guantánamo facility. The current criminal case evolved out of an investigation into allegations, sustained by Spain’s Supreme Court, that the Spanish citizen had been tortured in Guantánamo.

The Spanish criminal court now may seek the arrest of any of the targets if they travel to Spain or any of the 24 nations that participate in the European extraditions convention (it would have to follow a more formal extradition process in other countries beyond the 24). The Bush lawyers will therefore run a serious risk of being apprehended if they travel outside of the United States.

Horton notes:

Judge Baltasar Garzón is involved in the investigation, according to the El País report. Garzón is Europe’s best known counterterrorism magistrate, responsible for hundreds of cases targeting the activities of ETA and related Basque terrorist organizations. He also

Spanish Judge Baltasar Garzón

Spanish Judge Baltasar Garzón

spearheaded the successful investigation of Al Qaeda-affiliated terrorist organizations operating in the Maghreb region, including Spanish enclaves in Morocco. But Garzón is best known for his prosecution of a criminal investigation against Chilean dictator Augusto Pinochet that resulted in the issuance of an arrest warrant for Pinochet while he was visiting England.

Very interesting. A couple of comments.

First, if I were any of those lawyers, I might not want to travel to Spain or any other of those 24 states.

Second, the investigation raises a fascinating question about the liability of attorneys for giving “bad” legal advice. Of course, as Scott Horton himself has said elsewhere, one of the key cases on this question comes from Nuremberg, United States v. Altstoetter, also know at “The Justice Case.” Excerpts from the decision can be found here. Horton provides a summary of the decision:

Concerned about the level of resistance faced by German troops in the occupied territories, Hitler instructed Field Marshall Keitel to issue a special decree authorizing extraordinary measures pursuant to which political suspects would simply “disappear” to special detention facilities and might face summary court proceedings. The death penalty appears as the punishment most frequently contemplated. The decree, issued on the same day the Japanese attacked Pearl Harbor (December 7, 1941) and as the German drive on Moscow stalled and the Soviet counteroffensive had begun, is known as the “Night and Fog Decree” (Nacht- und Nebelerlass), a reference to the covert action it authorized. Contemporaneous documents make clear that it was motivated by the high level of casualties German soldiers were sustaining behind the front in occupied territory. Pacification of this territory was given a high priority.

A team of Justice Department lawyers worked with Keitel and his team at the German General Staff (OKW) on the drafting of the decree and further steps for its implementation. This included a series of highly particularized rules setting out how such detainees were to be treated by police, justice officials and others. The rules specified how such individuals would be permitted to make wills, issue final letters of farewell, what would be done with children born to detainees and how their death could be recorded in the registry. Other lawyers prepared parallel orders creating special secret courts and detention facilities for those interned under the Nacht- und Nebelerlass. These courts were crafted under domestic German law and thus constituted a projection of German law into the occupied territories.

These arrangements flouted the protections of the Hague Convention, specifically the right of “family honor, lives of persons” and the right “to be judged under their own laws.” To the extent applied against uniformed service personnel, they also violated the Geneva Convention on Prisoners of War of 1929. However, the Justice Department lawyers advanced the view that the Hague and Geneva Conventions were inapplicable because their adversaries did not subscribe to these documents. This decree was applied brutally, and with particular force in France. A total of at least 7,000 persons were detained; a large number of them perished.

The Justice Department lawyers justified these acts as steps available to an occupying power in order to protect its troops against terrorist acts or insurgency. Further, the occupied territories could be divided, roughly, into three categories: (i) areas directly incorporated into the German State (for instance, Austria, Alsace-Lorraine, the Eupen-Malmédy region of Belgium, Danzig and portions of Poland); (ii) areas under German occupation and direct administration (such as Bohemia and Moravia); and (iii) areas under puppet régimes (such as Hungary and Slovakia). As for the first, they asserted the right to treat persons found within those territories under German law. As to the second, they claimed the right as occupier to promulgate new rules and orders, and to derive them from Germany. As to the third, they relied on the acquiescence of régimes like Vichy France and Hungary. Their positions on these points were at least colorable from a legal perspective.

The Justice Department lawyers were indicted and charged with crimes against humanity and war crimes arising out of the issuance and implementation of the Nacht- und Nebelerlass. The United States charged that as lawyers, “not farmers or factory workers,” they must have recognized that their technical justifications for avoiding the application of the Hague and Geneva Conventions were unavailing, because these conventions were “recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war.” That is to say, they were customary international law. Further, the United States charged, this decree “would probably cause the death of human beings,” grounding a charge of homicidal intent.

After trial, the two principal Justice Department lawyers, one a deputy chief of the criminal division, were convicted and sentenced to ten years’ imprisonment, less time served. This judgment clearly established the concept of liability of the authors of bureaucratic policies that breach basic rules of the Hague and Geneva Conventions for the consequences that predictably flow therefrom. Moreover, it establishes a particularly perilous standard of liability for government attorneys who adopt a dismissive attitude towards international humanitarian law.

Could Yoo and company be found liable under this precedent? It would not surprise me if a Spanish court concluded in the affirmative. But it is a difficult question. It would, of course, be necessary to take each of the individual memos (and other sources of legal advice) and review the specific legal assertions contained in them. Based on my knowledge of some of the memos, I think there would be a spectrum of legal claims, ranging from unproblematic legal conclusions to arguable proposition to conclusions that seem nearly bogus on their face. Would some of those propositions in that later category be egregious enough to justify criminal ( or civil, for that matter) liability? We shall see. The Spanish court may have its take on this question, as may other courts, including, perhaps, U.S Courts. (It should not be forgotten, that even if the United States decides not to engage in criminal prosecutions in cases like this, civil suits remain an option. Indeed, there already has been at least on civil suit, and more may follow.)


Share/Bookmark this!

One Comment

Leave a reply

Add your comment below, or trackback from your own site. You can also subscribe to these comments via RSS.

Be nice. Keep it clean. Stay on topic. No spam.

You can use these tags:
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>

This is a Gravatar-enabled weblog. To get your own globally recognized avatar, please register at Gravatar.


Connect: LinkedIn profile Connect: Twitter profile
Connect: LinkedIn profile

Welcome! Who am I?



Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.