Foreign Investigation of Torture Techniques Sanctioned by Bush Administration

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

CIA Director Leon Panetta announced on April 9, 2009 that it would shut down those “black site” secret prisons in foreign countries utilized by the George Bush administration to house, and torture, suspected terrorists—many of whom were kidnapped off public streets in their home countries by either CIA agents or CIA operatives, and who had never been formally charged with any terror-related activity.

Panetta said the agency officers who employed what the New York Times called “brutal interrogation methods”—a euphemism for torture—“should not be investigated, much less punished” because their actions had been declared lawful by the U.S. Justice Department.

The laws of the United States, and international law, prohibit torture, as do many treaties between most civilized nations. CIA interrogators employed a variety of brutal interrogation methods in these “black site” prisons to get terrorist suspects to provide information about terrorism activities. One of the methods was “water-boarding”—a near drowning technique used on at least three prisoners in 2002 and 2003, and a torture technique declared a “war crime” by the U.S. after World War II because it had been used by the Japanese. Panetta and other top Obama administration officials have stated publicly that they believe water-boarding is torture.

Neither President of the United States, with all his immense executive powers, nor the United States Justice Department have either the statutory or constitutional authority to declare a crime—and torture is recognized by the laws of this nation and the laws of the international community as a crime—to be “legal” as suggested by CIA Director Panetta.

A Spanish investigating judge, may not be as tolerant of the CIA’s criminal indiscretions as Director Panetta. While prosecutors have publically rejected the idea of filing criminal complaints against Bush era administrators, a magistrate judge, most likely Baltasar Garson, who arrested Chilean dictator Augusto Pinochet, will ultimately decide whether a “full blown” investigation be conducted against six former Bush administration officials: former U.S. Attorney General Alberto Gonzales; Undersecretary of Defense Douglas Feith; former Vice President Dick Cheney’s chief of staff, David Addington; former Justice Department attorney John Yoo who authored the “memorandum” utilized by Bush administration officials to justify torture; former Justice Department official Jay S. Baybee; and Pentagon attorney William Haynes.

The focus of the National Court’s investigation would be to determine if these officials provided legal cover by advising President Bush that he could ignore the Geneva Conventions.

In a Wall Street Journal op-ed piece, Douglas Feith called Magistrate Garzon an “activist” judge who is famous for advocating Spain’s “universal jurisdiction.” The only one of the six former Bush officials to speak out, Feith wrote:

“The allegation is not that any of us tortured anyone. And it is not that any of us even directed anyone to commit torture. The allegation is that, when we advised President George W. Bush on the Geneva Conventions and detainee interrogations, our interpretations were wrong – in the view of the disapproving Spaniards. According to the complaint, these wrong interpretations encouraged the president to make decisions that led to torture.

“The Spanish magistrate apparently believes that it can be a crime for American officials to offer the wrong kind of advice to a president of the United States and, furthermore, it can be a crime punishable by a Spanish court. This is a national insult with harmful implications.”

One thing is clear – some high level Bush administration official gave the CIA the nod of approval to establish “black site” prisons on foreign soil knowing that torture would be administered. Systematic torture—whether defined as “enhanced interrogation techniques” or “brutal interrogation methods—does not just happen. It is authorized—and that authorization almost invariably goes to the very top echelons of government.

The complaint against the six former Bush officials does not allege that Spanish citizens were tortured in “black site” prisons but rather that Spaniards were tortured at the military run Guantanamo Bay prison in Cuba. Some Spanish officials believe that American officials should be held accountable for this torture.

In his op-ed piece, Feith used the following grandiose language in an attempt to undermine any Spanish inquisition: “But ours is a country of laws, and no reasonable person doubts that the American legal system has integrity.”

If Douglas Feith truly believes those words, why did he and others suggest to the President of the United States that he did not have to honor the Geneva Conventions? If we are truly a country of laws whose legal system has integrity, why did the CIA kidnap suspected terrorists off public streets in foreign countries, secret them out of their home country, and place them in “black site” prisons where they could be subjected to brutal torture? And all the while President Bush was reassuring the nation that Americans did not “torture.”

“From the Nuremberg trials of the Nazi leadership forward,” Feith bemoaned, “none of these cases in which former government officials have been tried for international crimes are actually precedents for what the Spanish officials are now considering. In countries run by officials who rule by force, commit aggression, perpetrate humanitarian outrages and stand above and out of reach of any domestic law, leaders are sometimes tried by international tribunals. Such countries’ sovereignty is not respected because their own domestic laws—let alone their international obligations—do not bind their leaders.”

The thrust of that paragraph supports an international investigation against Feith and his colleagues. President Bush, and a long list of administration officials, condoned the actions of the CIA associated with its “black site” prisons, including the infliction of torture. These officials stood “above and out of reach of any domestic law” because the Justice Department had sanctioned the CIA’s actions.

There is a laundry list of international legal issues that must be resolved before it can be determined whether Spain’s National Court has “jurisdiction” over the six former Bush officials. But Spain, like so many other European nations, has a right to be outraged by the actions of the American government under the Bush administration for allegedly torturing its innocent citizens and a right to press for official accountability in a court of law for those criminal actions.

CIA Director Panetta has made it clear that the officers who actually conducted the torture should not even be “investigated,” much less punished. While the director’s actions may well put the issue to bed in this country, it will not make this thorny issue go away in the international community. Additional evidence will continue to surface not only about torture of innocent people but about an array of unlawful actions carried out during the Bush administration under the guise of its “war on terror.”

It is poignantly ironical that while political conservatives are the first to rally around the “law-and-order” bandwagon, they are also the first to charge to the forefront to defend the lawless conduct of the former administration. We are not prepared to embrace the position that Spain has a legitimate right to prosecute the six former Bush administration officials, but we do believe the Spaniards have a right to investigate allegations of torture inflicted upon its citizens held in American civil, military, or “black site” prisons.

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair