Image: Gonzalo Boye
Paul White  /  AP
Spanish human right lawyer Gonzalo Boye's bid to go after the Bush administration's senior lawyers and advisers over alleged torture has failed.
updated 4/16/2009 5:41:27 AM ET 2009-04-16T09:41:27

Spanish prosecutors will recommend against opening an investigation into whether six Bush administration officials sanctioned torture against terror suspects at Guantanamo Bay, the country's attorney-general said Thursday.

Candido Conde-Pumpido said the case against the high-ranking U.S. officials — including former U.S. Attorney-General Alberto Gonzales — was without merit because the men were not present when the alleged torture took place.

"If one is dealing with a crime of mistreatment of prisoners of war, the complaint should go against those who physically carried it out," Conde-Pumpido said in a breakfast meeting with journalists. He said a trial of the men would have turned Spain's National Court "into a plaything" to be used for political ends.

Prosecutors at Spain's National Court have not formally announced their decision in the case, but Conde-Pumpido is the country's top law-enforcement official and has the ultimate say.

Coming less than three months after the Bush administration left office, the case was the first of several international efforts to indict former administration officials. Human rights groups have also tried to bring suit against Bush officials in a German court.

In addition to Gonzales, the complaint named ex-Undersecretary of Defense Douglas Feith; former Vice President Dick Cheney's chief of staff, David Addington; Justice Department officials John Yoo and Jay S. Bybee; and Pentagon lawyer William Haynes.

It alleged that the men — who have become known as "The Bush Six" — cleared the path for torture by claiming in advice and legal opinions that the president could ignore the Geneva Conventions, and by adopting an overly narrow definition of which interrogation techniques constituted torture.

Universal justice
Spanish law gives its courts jurisdiction beyond national borders in cases of torture or war crimes, based on a doctrine known as universal justice. If an indictment had been issued, it would have cleared the way for international arrest warrants, and — in theory, at least — extradition to Spain.

Gonzalo Boye, one of the human rights lawyers who brought the case, made a point of saying he was going after the Bush administration's senior lawyers and advisers — not the rank and file military and intelligence agents who may have carried out the abuse.

But prosecutors apparently did not buy that argument.

When the prosecutors rule, the case will go back into the hands of crusading investigative judge Baltasar Garzon, the Spanish magistrate who prosecuted ex-Chilean dictator Augusto Pinochet in the 1990s. While Garzon is not bound by their decision, it would be highly unusual for an investigation to proceed without the support of prosecutors.

'National insult'
Most of the American officials named in the case have remained silent since the allegations first surfaced in March. Feith, however, has condemned the court's action, calling Spain's claim of jurisdiction "a national insult with harmful implications."

Former President George W. Bush has steadfastly denied the U.S. tortured anyone. The U.S. has acknowledged that Khalid Sheikh Mohammed, the self-described plotter of Sept. 11, and a few other prisoners were waterboarded at secret CIA prisons before being taken to Guantanamo, but the Bush administration insisted that all interrogations were lawful.

The case came at a delicate time for Spain, whose Socialist Prime Minister Jose Luis Rodriguez Zapatero is hoping to improve relations with Washington after eight years of strained ties during Bush's term.

The government has insisted the court is independent and that the executive branch has no sway over its decisions.

More on Guantanamo Bay | waterboarding

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