(c) 2009, The Washington Post
BERLIN European prosecutors are likely to investigate CIA and Bush administration officials on suspicion of violating an international ban on torture if they are not held legally accountable at home, according to U.N. officials and human rights lawyers.
Many European officials and civil liberties groups said they were disappointed by President Obama's opposition to trials of CIA interrogators who subjected terrorism suspects to waterboarding and other harsh tactics. They said the release last week of secret U.S. Justice Department memos authorizing the techniques will make it easier for foreign prosecutors to open probes if U.S. officials do not.
Some European countries, under a legal principle known as universal jurisdiction, have adopted laws giving themselves the authority to investigate torture, genocide and other human rights crimes anywhere in the world, even if their citizens are not involved. Although it is rare for prosecutors to win such cases, those targeted can face arrest if they travel abroad.
Martin Scheinin, the U.N. special investigator for human rights and counterterrorism, said the interrogation techniques approved by the Bush administration clearly violated international law. He said the lawyers who wrote the Justice Department memos, as well as senior figures such as former vice president Dick Cheney, will probably face legal trouble overseas if they avoid prosecution in the United States.
"Torture is an international crime irrespective of the place where it is committed. Other countries have an obligation to investigate," Scheinin said in a telephone interview from Cairo. "This may be something that will be haunting CIA officials, or Justice Department officials, or the vice president, for the rest of their lives."
Manfred Nowak, another senior U.N. official who investigates torture accusations, said the Obama administration is violating terms of the U.N. Convention Against Torture by effectively granting amnesty to CIA interrogators. He said the United States, as a signatory to the treaty, is legally obligated to investigate suspected cases of torture. He also said Washington must provide compensation to torture victims, including al-Qaida leaders who were waterboarded.
"One cannot buy the argument anymore that this does not amount to torture," he said. "These memos are nothing but an attempt to circumvent the absolute prohibition on torture."
Nowak, an Austrian law professor based in Vienna, acknowledged that there is no mechanism in the anti-torture treaty to punish governments that ignore its provisions. From a political standpoint, he said, it is more important for the White House or Congress to authorize an independent commission to conduct a public examination of how terrorism suspects were treated after the Sept. 11, 2001, attacks.
"I still have full trust in the Obama administration to do the right thing," he said in a telephone interview from Bangkok. "It is more important for the United States to overcome a dark chapter in its history."
On Tuesday, Obama for the first time raised the possibility of creating a bipartisan commission to examine the Bush administration's handling of terrorism suspects. He also said he would leave it up to Attorney General Eric H. Holder Jr. to determine whether to prosecute senior officials who approved waterboarding and other tactics.
Several CIA and Bush administration officials have been targeted for prosecution in Europe, though the cases have generally not progressed very far.
In Spain, a human rights group is pushing prosecutors to investigative six senior Bush administration officials for allegedly sanctioning the torture of prisoners at Guantanamo Bay, Cuba. Last week, Spanish prosecutors recommended dropping the case after Attorney General C ndido Conde-Pumpido called it a politicized attempt to turn Spanish courts "into a plaything." A Spanish judge will make the final decision.
In Germany, human rights groups have tried to bring charges against former U.S. defense secretary Donald Rumsfeld over the abuse of Iraqi prisoners at the Abu Ghraib facility. Germany's federal prosecutor has twice rejected the case, but supporters have appealed in court.
Wolfgang Kaleck, a Berlin lawyer who helped file the complaint against Rumsfeld, said that such cases have failed largely because European courts have ruled that they should be handled in U.S. courts instead. That could change, he said.
"Everybody prefers that prosecutions take place in the U.S.," he said. "But if nothing happens there, then that's the end of the legal argument to dismiss these cases in Europe."
John B. Bellinger III, who was legal adviser to then-Secretary of State Condoleezza Rice, said European governments will face a worsening legal and political dilemma if human rights groups redouble their efforts to pursue criminal investigations of U.S. officials.
"They realize this will put them in a very difficult position," said Bellinger, now a partner at the law firm Arnold & Porter in Washington. "They will be under pressure from civil liberties groups and some European parliamentarians not to oppose these cases. But if they allow them to go forward, they know it could strain their relationship with the Obama administration, which says it wants to look forward, not back."
Additionally, European governments are unlikely to favor the prosecution of U.S. officials under universal-jurisdiction statutes for practical reasons, he said. For instance, U.S. officials facing charges or indictment could no longer travel to Europe without facing the risk of arrest, a situation that could spiral out of control diplomatically.
"It just sets a bad precedent," he said. "Current and former government officials have to be able to travel. Once you allow one or two of these cases, it could really open the floodgates to actions against officials of many countries."