Judge Baltasar Garzon wants to press charges of human rights abuse against six leading Bush administration officials, including former Attorney General Alberto R. Gonzales, for providing legal cover to activities at Guantanamo. The other five U.S. officials he wants to put in the dock are former Undersecretary of Defense for Policy Douglas Feith, former Assistant Attorney General Jay Bybee, former Deputy Assistant Attorney General John Yoo, former Defense Department General Counsel William J. Haynes II and Vice President Dick Cheney's former legal counsel, David Addington.
The massive 98-page complaint was filed in March 2008 by Gonzalo Boye, a former Chilean attorney who now lives and practices in Spain, on behalf of the Association for the Rights of Prisoners.
The case has already been going on for more than a year and has so far received relatively little attention in the American media, but its implications are huge. But on Thursday, Spanish Attorney General Candido Conde-Pumpido said he would advise Judge Garzon to drop the case.
Ironically, Spain's Socialist government was highly critical of the Bush administration's policies in the war on terror. But it enjoys warm relations with the new U.S. administration led by President Barack Obama, and some critics have suggested that Spanish Prime Minister Jose Luis Rodriguez Zapatero does not want to risk embarrassing his friend.
"It's a shame the prosecutor is taking this position, but not a surprise," Boye told CNN. "They always obey political orders. They don't want to be in a bad position in front of the Obama administration."
However, Garzon, the Spanish judge who will make the key ruling whether to proceed with the case, is the same magistrate who ordered the famous arrest warrant for former President Augusto Pinochet of Chile for his actions while he was dictator.
Garzon already has an unparalleled and fearless record of going after international targets of the left, the right and everything in between. He has probed the notorious crimes of the 1970s military junta in Argentina that killed at least 30,000 people, radical Islamic terror groups operating in Spain and international drug cartels, CNN reported. He also went after the Basque terrorist group ETA when it carried out attacks in Spain.
However, Conde-Pumpido is taking the line that although four Spanish nationals were among the suspects held and allegedly abused at Guantanamo, the first and main investigation into the case should be carried out within the United States itself so that the six accused former government officials should have a proper opportunity to defend themselves in their own courts and in their own country.
The attorney general's refusal to recommend the prosecution makes sense in both political and legal terms. It avoids the embarrassment of pitting Spanish and European courts and governments against the United States at the very time when governments on both sides of the Atlantic are eager to repair the strains in their relationship that were generated by the Bush administration's controversial policies on Iraq and the war on terror.
Conde-Pumpido also clearly wants to set a precedent to rein in the increasingly popular but chaotic practice of bringing major human rights actions against alleged transgressors in third countries where Spain can lay no real claim for jurisdiction.
Finally, prosecuting the former U.S. officials in any European court would be more likely to create a patriotic backlash in favor of the accused back in the United States and make it much more difficult for U.S. courts to start proceedings against them.
If the case in Spain goes ahead anyway, or if separate proceedings are instigated in a U.S. court, the defendants will probably argue that they should not be held criminally responsible for the legal advice.
The Spanish attorney general's action does not guarantee that the case will not go ahead. But it looks likely that if Garzon ignores the advice he has just received not to proceed, he will have an uphill battle to make the case credible, and it may yet be thrown out over a host of technicalities.
Nevertheless, the controversy has highlighted the degree to which the European legal system in general, and the Spanish one in particular, allows huge discretion for an individual judge to pursue a case like this.
The issue is far from dead, but it looks increasingly unlikely to proceed very far in Madrid.