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… a new edition / of the Spanish Inquisition*

11 February 2009

A U.S. “truth commission” should investigate Bush administration policies including the promotion of war in Iraq, detainee treatment and wiretapping without a warrant, an influential senator proposed on Monday.

Democratic Senator Patrick Leahy, chairman of the Judiciary Committee, urged a commission as a way to heal what he called sharp political divides under former President George W. Bush and to prevent future abuses.

He compared it to other truth commissions, such as one in South Africa that investigated the apartheid era.

“We need to come to a shared understanding of the failures of the recent past,” Leahy said in a speech at Georgetown University.

“Rather than vengeance, we need a fair-minded pursuit of what actually happened,” the Vermont senator said. “And we do that to make sure it never happens again.”

Randall Mikkelsen, Reuters

This is fine, but  “Truth Commissions” deal with state crimes against its own citizens, not international war crimes and genocide.   And, there is no doubt that the Bush administration officials, including George W. Bush himself,  are very likely to be indicted for these crimes, somewhere, sometime.

Had the previous Bush Administration limited abuses — and torture — to its own citizenry, then a “truth commission” (though South Africa is mentioned, Argentina, Chile, Panama and Peru have all held such tribunals in this hemisphere) would be possibly appropriate. However, as those other American commissions have found, the truly guilty often go free. Lillie Langtry’s “Memory in Latin America” is continually covering fallout from Argentina’s “dirty war” of the late1970s and early 80s — and the failure of Argentina’s 1983 Comisión Nacional sobre la Desaparición de Personas to do more than simply document some of the most egregious human rights abuses.

And, as Lillie recently wrote, the trials are still going on… via a second route of inquiry.  Italy — based on the “extraterritorial jurisdiction” over crimes committed against Italian citizens during the Argentine dictatorship — is seeking the extradition of Emilio Massera, one of the junta leaders.  Massera, having been found incompetent to stand trial in Argentina could (but probably won’t) stand trial in Italy.

The United States recognizes “extraterritorial jurisdiction” when crimes are committed against its citizens in other parts of the world (at an extreme, invading the other nation to serve an arrest warrant, as happened in Panama in December 1989, though the act of war specified reasons other than dragging Manuel Noriega before a Florida judge).  A few years ago, Fidel Castro was found culpable in a Florida civil court in a wrongful death suit (the plaintiff was the daughter of a C.I.A. agent whose plane had been shot down over Cuba),  so it’s not like the concept of trying foreign heads of state is exactly novel in the United States.

Several of the European Union countries have also been proactive in applying “extraterritorial jurisdiction” when their own citizens have been crime victims, especially Spain.

Spain created a diplomatic flap a few years back, when under this same legal theory, it demanded the extradition of Augustin Pinochet from Great Britain.  Pinochet was in Britain for medical treatment (and, because he was best buds with Margaret Thatcher). There were several outstanding arrest warrants for Pinochet’s arrest for crimes committed in Chile against Spaniards; and European Union nations (like Spain and Great Britian) are bound by treaty to honor each other’s extradition requests.  Just because the Chilean Senate had passed a law  preventing Pinochet’s arrest and trial, that didn’t mean Spain couldn’t try him under their own laws.  Nor, should there have been any legal question of his extradition from Britain.

Pinochet managed to stay out of the Spanish slammer either because he really was ga-ga (as his doctors claimed), or did a very good imitation of it… or, more likely, because Margaret Thatcher managed to suborn the British judges.  Our supposed corrupt judges here in Mexico, however, have allowed internationally wanted human rights abusers (like Argentine naval officer Ricardo Cavallo) to be extradited to Spain.

While Pinochet got away, Spanish judges still seek to bring foreign leaders into their courts.  Judges in that country briefly considered issuing a warrant for the arrest of former Salvadorian President Alfredo Christiani in connection with the murder of 14 Jesuit priests and two housekeepers.  Some of the priests held Spanish nationality, and Spain’s right to try the case is not in question. What was at question was whether Christiani was the “intellectual author” of the crime — the “brains” behind misdeeds being as guilty as the actual perpetrator in most Hispanic legal codes.

Spain has tried — so far unsuccessfully — to bring three U.S. soldiers into custody for their role in the death of RTV cameraman Jose Couso in Baghdad.  Should these soldiers be found outside the United States, however, the warrant is still good, and they can be picked up by police anywhere in the world.  That’s why we have Interpol.

Donald Rumsfeld had to flee France to avoid arrest by that country’s courts — which recognize a not as universally recognized concept of “extraterritorial jurisdiction” — under which the courts have the right to try ANY international crime against humanity, whether it involves their own citizens or not.   The French magistrate decided not to pursue the charges, and it’s doubtful other nations would honor an extradition request for a not widely recognized legal theory.  Belgium also reserves the rights to try anyone they can bring before their courts for certain international crimes (genocide, crimes against humanity, war crimes), and Spanish jurists have started to consider the concept.

The Spanish — having experience with trying foreign human rights criminals — and being able without any stretch of legitimately applying “extraterritorial jurisdiction” — have the best claim of taking the first shot at the Bushistas. Spaniards were killed in Iraq (quite a number of them) and it’s not incoceivable that we we will find a Spaniard, or someone who is covered by Spanish law (say, a refugee in Spain, of which there are many from Iraq)  who was abused, tortured, waterboarded… extraordinarily rendered… anything to set off an investigative magistrate.

And, should Bush, or Cheney or Rumsfeld or Rice wander out of the United States, there is not reason to expect they would be safeguarded by U.S. laws… or a toothless “truth commission.”

Though Bush and Cheney continued to insist that their actions did not violate anti-torture laws, waterboarding – a technique that makes the victim believe he is drowning – has been regarded as torture at least since the Spanish Inquisition and has been treated as a serious war crime by the U.S. government in the past.

Waterboarding: bad. The “kinder, gentler” Spanish Inquisition: good.

* Yup, that’s from Alan Jay Lehner’s “I’m An Ordinary Man” from his and Fritz Loewe’s 1956 musical, My Fair Lady, which is probably copyrighted somewhere

2 Comments leave one →
  1. 11 February 2009 12:41 pm

    A specific point on the Argentina commission: it was totally groundbreaking as almost the first of its kind. It was also an excellent start and led swiftly into the trial of the military leaders. Everything was actually going well at that stage. However then, under military pressure, amnesty laws were introduced and the human rights abusers were either not tried or freed, if they had already been convicted. That was not a failing of the commission, but of the politics which followed it.

    Indeed, truth commissions have their place. But they should not, if possible, be used instead of judicial solutions. If crimes were committed, the correct place to resolve the matter is in a court. Truth commissions can have a much broader mandate which is potentially healing to society but are generally weaker when it comes to sanctions, although the details vary from commission to commission.

    I think the suggestion to investigate the past is itself a valuable one, though.


  1. Actually, I did expect the Spanish Inquisition « The Mex Files

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