Chile's Pinochet. Argentina's Scilingo. Guatemala's Rios Montt. To the roster of international figures whom Spanish investigative judge Baltasar Garzón has sought to bring to justice, the name of Gonzales may soon be added as in Alberto Gonzales, former U.S. Attorney General and one of the legal minds behind the Bush Administration's justification of the use of torture at Guantánamo.
On March 17, a group of lawyers representing the Association for the Dignity of Prisoners, a Spanish human-rights group, filed a complaint in Spain's National Court against Gonzales and five other former officials, including Under Secretary of Defense Douglas Feith and the Justice Department's John Yoo, for violating international law by creating a legal framework that permitted the torture of suspected terrorists. On March 29, the complaint became public after Garzón, who had been assigned the case, sent it to the prosecutor's office for review, a step seen by many familiar with the court as a sign that the judge will soon agree to investigate the case. "It's still a bit early," says Almudena Bernabeu, international attorney with the San Franciscobased Center for Justice and Accountability, which has brought claims before the National Court on behalf of victims of human-rights abuse in Guatemala and El Salvador. "But it's a great step." (See pictures of Pakistan's lawyers celebrating victory.)
It is a step on a path that Garzón and other judges in the same court have been down many times before. Spain's National Court is perhaps the world's leading practitioner of universal jurisdiction, a legal principle that holds that in crimes of exceptional gravity, the right to render judgment is not limited to the country where the crime was committed. It's a principle that helped Garzón famously order the arrest and extradition of Chilean dictator Augusto Pinochet in 1998 and that seven years later helped convict Argentine military officer Adolfo Scilingo of crimes against humanity. The National Court has also heard cases against high-ranking Chinese officials on behalf of Tibet and Falun Gong, and against Israel for its attacks in Gaza. (See pictures of Israeli soldiers sweeping into Gaza.)
For Gonzalo Boye, one of the lawyers who filed this latest complaint, the legal cover that Gonzales, Yoo and other possible defendants provided for waterboarding and other abuses at Guantánamo warrants the international investigation. "Bush made a political decision based on the advice he was getting from his judicial advisers," says Boye. "And what his advisers were telling him to do is a very serious crime."
No doubt there's a bit of strategy in aiming at Yoo and Feith (the complaint also brings charges against William Haynes, former general counsel for the Department of Defense; Jay Bybee, of the Office of Legal Counsel at the Justice Department; and David Addington, Dick Cheney's chief of staff). "Politically, going after lower-level officials is a lot more palatable than going against a former President and Vice President," says international-law professor Robert Goldman, director of the War Crimes Research Office at American University. "Plus, there's a lot more direct evidence when it comes to Yoo, Bybee and Addington. Their fingerprints are all over these policies." (Reached by e-mail, Bybee, now a judge on the Ninth Circuit Court of Appeals, said he had no comment.)
But direct evidence or no, can the case have anything more than symbolic impact? "That's the toughest question," admits Bernabeu. "It's hard to believe we would see them face justice in a Spanish courtroom." Indeed, when Spain's National Court brought charges against U.S. military personnel for willfully firing on the Hotel Palestine in Baghdad, where journalists were known to stay, and killing Spanish cameraman José Couso, the three indicted officers simply ignored the subpoena. The court later dropped the charges on appeal. (Vote for the 2009 TIME 100 Finalists.)
That's not to say, however, that there won't be an impact should the case go forward. Several human-rights organizations in the U.S. are said to be preparing their own charges against the authors and signatories of the so-called Torture Memos, and their cases may be strengthened by the mere fact that a Spanish investigation has begun. "It's ironic that we sometimes have to use international courts to encourage national ones to take action, but that's the way it works," says Bernabeu. "And having a national court take action can be a way of stopping things from happening elsewhere in the world." (Read "The Bush Administration's Most Despicable Act.")
Furthermore, if Garzón subpoenas the lawyers and they fail to appear in his court, he will then most likely issue an international arrest warrant for each, just as he did for Pinochet, who was subsequently taken into custody while convalescing after back surgery in Britain. "If I were these fellows, I'd be very careful about where I traveled," notes Goldman.
But Boye believes the legal complaint will have far more than symbolic effect. Asked whether he expected to see Gonzales or others in a Spanish court or an American one, he replied, "I expect to see them in court, full stop. You know why? Because I believe in the American system of justice."