Abaixo um artigo do The Nation, único jornal estadounidense de
esquerda, que informa que o Juiz Baltasar Garzón abriu um processo
criminal contra os juizes americanos Jay Bybee and John Yoo, por estes
terem assinado um documento que justifica e autoriza o uso da tortura
contra os acusados de terrorismo em Guantánamo. Ele invoca a Convenção
contra a tortura, que obriga os governos (no caso os EUA) a investigar
crimes de tortura. Como isso não ocorreu e como a tortura é crime
contra a humanidade, a investigação internacional tem respaldo no
direito internacional. Ressalte-se que Guantanamo não faz parte do
território dos EUA e creio que isso motiva a estratégia de acusar os
dois juízes e não o governo deste país. Como informação adicional,
dois espanhóis encontram-se detidos em Guantánamo.

Torture Lawyers on Trial?
Comm ent
By David Cole
This article appeared in the March 1, 2010 edition of The Nation.

Any day now, the Justice Department's Office of Professional
Responsibility (OPR) is expected to release its long-awaited report on
the lawyers who crafted the Bush administration's unprecedented legal
architecture for torture. As with much else in Washington, the
report's conclusions have already been leaked. In January Michael
Isikoff and Daniel Klaidman wrote in Newsweek that while an earlier
draft had recommended that state bars consider formal discipline of
Jay Bybee and John Yoo, the principal authors of the initial "torture
memo," the report has been watered down to find only the exercise of
"poor judgment" and does not recommend referral for discipline.
Torture has been called many things before--chief among them a "crime
against humanity"--but "poor judgment"? I bet they will also find that
"mistakes wer e made."
Meanwhile, across the ocean, a Spanish judge opened a formal criminal
investigation of Bybee and Yoo in January for their role in
authorizing torture tactics at the detention center at Guantánamo Bay.
The judge, Baltasar Garzón, indicted Gen. Augusto Pinochet in 1998
for, among other things, authorizing torture while serving as Chile's
self-appointed president, so he's shown himself unafraid to call
torture something more than "poor judgment." In March 2009 Garzón took
up a complaint filed against the lawyers; he has completed the initial
inquiry and determined that a full formal criminal investigation is
warranted.
Back at the scene of the crime, the most the Justice Department
appears to be willing to do is slap Bybee's and Yoo's wrists. No
criminal investigation has ever been instituted--not by attorneys
general John Ashcroft, Alberto Gonzales or Michael Mukasey, all of
whom are persona lly implicated in the department's authorization of
coercive interrogation methods; nor by Eric Holder, who has opened
only a limited criminal investigation of CIA interrogators who
allegedly exceeded even the brutality authorized by the Justice
Department lawyers but not of the lawyers who sanctioned the brutality
in the first place.
It may seem odd that Spain, and not the United States, is undertaking
a criminal investigation of US government officials for torture. But
that's exactly what the Convention Against Torture contemplated.
Countries all too frequently seek to cover up their own acts of
torture, so the convention obligates signatory states to investigate
credible allegations of torture, and it also recognizes that such
crimes can be prosecuted anywhere. As President Reagan explained when
the United States signed on to the Convention Against Torture in 1988:
"The core provisions of the Convention establish a regime for
international cooperation in the criminal prosecution of torturers
relying on so-called 'universal jurisdiction.' Each State Party is
required either to prosecute torturers who are found in its territory
or to extradite them to other countries for prosecution."
In his decision authorizing the Spanish case to go forward, Judge
Garzón emphasized that Spanish citizens held at Guantánamo had been
victims of the policy. (In fact, Garzón had prosecuted one of those
Spanish citizens for involvement in terrorism, but his conviction had
been reversed on appeal because of the abuse the man suffered at
Guantánamo.) Judge Garzón also stressed that US authorities had not
instituted any criminal investigation themselves and in fact had not
even responded to his formal request for information to Attorney
General Holder in May 2009. If the United States took its legal
obligations seriously, Ga rzón's opinion implied, there would be no
need for a prosecution overseas. But treating the matter solely as an
ethics issue, not a potential crime, and labeling it only "poor
judgment," hardly satisfies US international obligations.
If and when the OPR report sees the light of day, the Justice
Department should at a minimum be pressed to release the early version
as well and to detail the process by which its conclusions were
watered down. But more important, that it takes a Spanish judge to
treat torture as the crime against humanity that it is while the
Justice Department apparently considers it only an instance of "poor
judgment" demonstrates the necessity for an inquiry independent of the
very department implicated in these potential crimes. Now more than
ever it is time for a blue-ribbon, bipartisan independent commission,
much like the 9/11 Commission, with full subpoena power. We should not
leave accountability for our own possible crimes to the Spanish.
About David Cole
David Cole is The Nation's legal affairs correspondent. His latest
book is The Torture Memos: Rationalizing the Unthinkable (New Press).