Julian Mortenson wrote an insightful essay for Slate, providing details about the facts and law applicable to the Spanish investigation of Bush administration officials regarding allegations of torture at Guantanamo Bay.
He does a pretty good job of summarizing the state of the law, and the policy issues involved, a few quick hits:
First, “Nobody’s been charged with anything yet. The Spanish civil law system allows criminal complaints to be filed by individual civilians, screened by an investigating magistrate like Garzon, and then referred to a prosecutor’s office for preliminary assessment. After the prosecutors make their recommendation, an ultimate go/no-go decision on pursuing criminal charges follows. In the Guantanamo case, the process has only just cleared the first screening. That said, the referral makes a full investigation quite likely, and at least one official Spanish source has called eventual charges ‘highly probable.’”
Second, even if an arrest warrant were issued, it’s pretty unlikely that the U.S. would extradite Bush administration officials to Spain; although it may very well mean that those individuals may not be able to travel abroad.
Finally, a broader issue, according to Mortenson, is the fact that these individuals are facing criticism, not for their role in individually ordering specific acts of torture, but rather for creating a framework that would facilitate torture. Mortenson importantly notes that while some of the legal advice may have ended up being wrong “in the eyes of the Supreme Court” it wasn’t insane.
An interesting essay, and well worth the read.
Cross Posted at LawandTerrorism.com