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Criminal Proceedings against the Torture-Memo Lawyers
by Jacob G. Hornberger

U.S. defenders of the war on terrorism are agog over the fact that a Spanish judge, Baltasar Garzon, has initiated a criminal investigation of the Justice Department lawyers who prepared the infamous torture memos. Garzon is the same judge who initiated criminal proceedings in Spain against Chilean military strongman Augusto Pinochet for torture, murder, and other crimes committed by Pinochet’s subordinates in Chile.

Advocates of the war on terrorism are upset over Garzon’s application of a doctrine known as “universal jurisdiction.” That doctrine holds that when government officials commit crimes that are so egregious in nature as to constitute crimes against all, other regimes can put such officials on trial, even if the crime occurred outside the jurisdiction of the accusing country.

The problem that U.S. officials have is that they lack any real moral standing to object to the concept of universal jurisdiction. After all, what is the war on terrorism itself if not an absolutely perfect embodiment of the concept of universal jurisdiction?

Think about it: The U.S. government claims the power to wage its war on terrorism not just here in the United States but also all over the world. It claims the power to surreptitiously send its agents into any country on earth, kidnap people, and then rendition them to brutal regimes for the purpose of torturing the victims. As long as they’re waging their war on terrorism, the idea is that U.S. agents are immune from criminal and civil liability for violating the laws of other countries.

Consider, for example, Italy. The U.S. government sent CIA agents into Italy with orders to kidnap a resident of that country, notwithstanding that there are criminal laws against kidnapping in Italy. The CIA agents kidnapped the man, drugged him, whisked him away to the airport, and then transported him to a foreign regime for the purpose of torturing him.

Could the U.S. government have followed regular judicial procedures in Italy for arresting and extraditing the man? Of course. But the feeling of U.S. officials is: “We don’t have to do that. We’re waging our war on terrorism, which is universal in nature. Therefore, we can go into any country on earth and take people into custody who we feel are terrorists and cart them away for appropriate treatment.”

As it turns out, Garzon isn’t the only foreign judge who is initiating criminal proceedings against U.S. officials. An Italian judge indicted the CIA agents who kidnapped and renditioned the guy in Italy. But U.S. officials have steadfastly maintained that they will never comply with an extradition request from Italy, notwithstanding an extradition agreement between the two countries. The feeling is: “We’re at war against the terrorists, and it’s a universal war. Therefore, we don’t have to answer to anybody. We are the law, universally.”

It’s still not clear whether U.S. officials are going to permit other nations to wage war on the terrorists too. In other words, if foreign regimes begin sending their agents into other countries to kidnap and rendition people residing in those countries, it’s not at all clear that this is going to sit well with U.S. officials.

For example, if Venezuela or Cuba sent secret agents into the United States to kidnap Jose Posada Carriles, the suspected mastermind of the terrorist downing of a Cuban airliner over Venezuelan skies, my hunch is that U.S. officials would be angry and outraged over Venezuela’s and Cuba’s participation in the global war on terrorism.

And it gets more interesting than that. Recently, the Justice Department secured a criminal conviction in a federal district court here in the United States against Charles “Chuckie” Taylor Jr. for torturing people in Liberia. Yes, Liberia. The U.S. district judge sentenced Taylor to 97 years in a U.S. federal penitentiary for torture committed in Liberia, not here in the United States.

How is that different from Garzon’s initiation of criminal proceedings against U.S. officials who are alleged to have participated in a torture system outside Spain?

Of course, the chances that Garzon’s criminal investigation will ever result in jail sentences for U.S. officials are slim, especially given the enormous power and influence of the Pentagon, the military-industrial complex, and the CIA. But one thing is for sure: For the rest of their lives, those U.S. officials who participated in the Bush administration’s enhanced interrogation program, from the top on down, will no doubt want to think twice about vacationing in Spain … or any other country that might decide to honor an extradition request from Spain.

Jacob Hornberger is founder and president of The Future of Freedom Foundation, publisher of Your Money or Your Life: Why We Must Abolish the Income Tax by Sheldon Richman. Send him email.