Reading some of the latest headlines, one might think that Spanish investigations and possible indictments of six former Bush officials for alleged involvement in torture were dead in the water. As the Associated Press banner put it (4/17/09): "Spain: No Torture Probe of U.S. Officials," while the Los Angeles Times headlined a news brief (4/17/09), 'Spain; Prosecutors Reject Trying Bush Officials."
On the prosecutors' announcement, the AP story reported:
While their ruling is not binding, the announcement all but dooms prospects for the case against the men going forward. On Thursday, Spain's top law-enforcement official Candido Conde-Pumpido said he would not support an investigation against the officials–including former U.S. Attorney General Alberto Gonzales.
So perhaps Bill O'Reilly is be excused for celebrating the news last night (O'Reilly Factor, 4/16/09), though the Fox host may have gone too far when he claimed credit for Spain's reported change of heart: "I don't know if the Factor was a factor in this decision, but I am taking full credit for it," said O'Reilly, who went on to suggest that it was his recently threatened boycott that forced Spain's hand: "We were going to boycott Spain,' said O'Reilly, "and they folded pretty darn fast."
But according to Harper's legal blogger Scott Horton, the reports, and the O'Reilly boasts they seem to have prompted, are, at least, premature. Appearing on Democracy Now! on Friday, Horton criticized AP's reporting, pointing out that in the Spanish system, investigating judges make the call on indictments, not prosecutors.
Well, the Associated Press is giving you extremely faulty legal analysis, because a decision as to whether the case will go forward rests entirely with the investigating judge. The Spanish system is not like the American system, where prosecutors decide who and when to bring cases and who to prosecute.
And Horton explained that the investigating judge in this case, Baltazar Garzon, is not known for acceding to advice from Spanish prosecutors:
In the Spanish system, the prosecution is managed by an investigating judge. In this case, itÃƒÆ’Â¢ÃƒÂ¢”Å¡Â¬ÃƒÂ¢”Å¾Â¢s Baltasar Garzon. And you may recall he handled the case involving Augusto Pinochet, and he did that against the stern opposition of Spanish prosecutors, I think which shows you the weight that that recommendation may hold with him in his court.
Horton underlined another important fact, a point that was reported in some news media (e.g., New York Times, 4/17/09), but missed by others, including by O'Reilly: The Spanish prosecutor thinks the U.S. should prosecute the Bush officials:
But there's a different consideration to weigh in here, as well, and that is that this is a statement that was announced by the prosecutors at the Audencia Nacional in Madrid, and we know, in fact, that those prosecutors who have made this recommendation not to go forward in fact concluded that the case should be prosecuted.
They prepared a 37-page memorandum–and I've discussed, I've talked with several people in Madrid who have read it–that laid out the case, showed how it could fairly easily be brought, how it involved a joint criminal enterprise, how it could be sustained on the basis of documents, including some of those that were released yesterday. And that decision by the career prosecutors was overridden in a political act by Spain's attorney general, who's a political figure. He was a member of the cabinet of Prime Minister Jose Zapatero.
And Horton reports a story that to our knowledge has not been reported in U.S. corporate media thus far, that the top Spanish prosecutor's decision to oppose indictments was prompted by politics–high-level communications between the U.S. and Spanish governments. Because of this, according to Horton, the prosecutors objections were likely to be taken less seriously when and if indictments are considered:
Moreover, the attorney general's decision, which was announced yesterday morning in Madrid, came after several days of high-level discussions between Washington and the Zapatero government, during the course of which, I've been told, the Obama administration suggested very strongly that the pendency of this case was inconvenient and that it would be viewed as a great favor by Washington if Zapatero's government could do what was within its power to shut this down. And I think what we see here is an accommodating nod from Jose Zapatero.
So it has really nothing to do with justice, and it has nothing to do with the merits of the case. It's a political act. And it's certain to be understood by the judges of the Audencia Nacional as a political act, which means I don't think it really forms much of a barrier to the prosecution going forward.