Spanish investigative judge Baltasar Garzón, known in international legal circles for his efforts to extradite Chilean dictator Augusto Pinochet, said Tuesday that he will open a preliminary investigation into the creation of the Guantánamo camp.
If followed through, the investigation could bring out in a European court many of the materials already uncovered in the United States – through congressional committee hearings, recently declassified CIA memos, and media outlets – on the sanctioning of extreme methods of interrogation that have widely been called "torture."
Judge Garzón, known as "the superjudge" in Spain for his high-profile indictments, appears to be focused less on those in the US who carried out extreme measures, and more on the conceptual legal "framers" of then-secret memos that enabled the interrogations.
The scope of Garzón's filing includes "any of those that executed and/or designed a systematic plan of torture or cruel, inhuman, and degrading treatment of the prisoners [at Guantánamo] that were under their custody."
Sources familiar with the case say that pressures by the Spanish government to slow or stop Garzón are intense, and that Spanish justice officials and even Garzón himself would prefer that the US administration carry out a serious investigation in line with the requirements of the 1984 Convention on Torture (of which the US is a signatory), which demands such an inquiry.
The legal basis for the case is known as "universal jurisdiction," in which heinous crimes can be tried outside national borders; Indeed, a US court in New York this January exercised universal jurisdiction in a torture case involving Roy Belfast Jr., the son of Charles Taylor, the former Liberian dictator.
The situation highlights a White House trying to show the world a different face of America in the area of rule of law, moral authority, and that wants to "lead by example," as President Obama has said – but without adding to an already toxic controversy on the US domestic political scene.
The Garzón notice came as US Attorney General Eric Holder was on a five-day visit to Europe to set a new tone from the Justice Department on cooperation with European allies, and to seek help in placing some 30 Guantánamo detainees that, it says, are ready for release. Mr. Holder told reporters in Berlin that Guantánamo had made the US and its allies "less safe" since the introduction of practices like waterboarding, which he has described as an unambiguous form of torture and "a chief recruiting tool" among terror cells.
Most European leaders are eager for good relations with the Obama administration at a time of war in Afghanistan and an economic crisis, and, if anything, are sending signals to their independent judiciaries not to push prosecutions of Bush administration officials that could create problems for the new president.
But Europeans have also consistently articulated opposition to Guantánamo and torture, even while governments here often drifted into gray areas in working with the US in the war on terror, points out Anthony Dworkin, legal specialist with the London office of the European Council on Foreign Relations.
"What this [Garzón] investigation shows is the incredibly difficult legacy that has been left by the Bush administration, acting at odds with international law," Mr. Dworkin says. "Most governments in Europe are keen to improve relations with the US, to reset the relationship. The Spanish government hopes to see a credible investigation begin in the US. The Spanish attorney general has said the first responsibility is not with Europe but with the US."
Though some US opinionmakers say the motions of one Spanish judge will have little impact, US diplomats are not as quick to dismiss them. Subpoenas and indictments would not only restrict travel as a practical matter for US officials, but the case itself could bring unforeseen dynamics both at home and abroad.
"It really only takes one court in Europe to set in motion an entire process that we will ultimately have to deal with, not ignore," a US diplomat in Europe says.
Legal experts like Philippe Sands, a British barrister and author of the new work "Torture Team," who knows Garzón, says the Spanish judge and his colleagues have been saying for months that they would open investigations if there is no clear process established in the US.
But they have also indicated that they would probably drop the case if the Obama administration were to move forward with an inquiry that comports with the requirements of the 1984 Convention on Torture. The convention obliges its signatories (which include the US) to investigate allegations and to recommend prosecutions if warranted.
"If there are no US investigations, the Europeans will hold one, believe me," says Mr. Sands. "But Garzón, I think, will drop it if the rule of law in the US can be seen to be satisfied, maybe by a nonpartisan commission."
Holder, in Berlin, said that currently, he feels the US Justice Department has "all the necessary" tools to conduct an investigation, and that he was not at this time ready to appoint independent counsel or a special prosecutor for the torture allegations.