09MADRID347 “Spain: Prosecutor Weighs GTMO Criminal Case vs. Former USG [U.S. Government] Officials.”

Date of cable: April 1, 2009
Origin: U.S. Embassy in Madrid
Classification: Confidential

This cable details the filing of the “Bush Six” case in Spain, investigating six former Bush administration officials for creating a legal framework that permits torture. The six officials are: former Attorney General Alberto Gonzales, David Addington (former Chief of Staff and Legal Adviser to Vice President Dick Cheney), William Haynes (Pentagon’s former General Counsel), Douglas Feith (former Undersecretary of Defense for Policy), Jay Bybee (former head of the Justice Department’s Office of Legal Counsel), and John Yoo (former Deputy Assistant Attorney General in the Office of Legal Counsel). This cable provides an overview of the legal theory and some of the supporting evidence cited in the complaint, showing U.S. concern about the case.

This cable goes on to describe a meeting between U.S. officials and the Spanish Chief Prosecutor Javier Zaragoza who indicated that he would “in all likelihood … have no option but to open a case” as the “complaint appears well-documented” —U.S. officials noted that the evidence on his desk was “a foot long”—but assured that “he was in no rush to proceed with the case and [that] in any event … [he would] argue that the case should not be assigned to [Judge Baltasar] Garzón.” U.S. officials noted Zaragoza expressed “visible displeasure” at having to deal with the case, as well as his assurance that he would appeal if Judge Garzón took it. Zaragoza appeared to further sympathize with the U.S. officials by saying that “Garzón’s impartiality was suspect” as evident from his “public criticism of Guantanamo and the U.S. war on terror,” and the U.S. officials themselves recorded that “Garzón narrated a documentary in 2008 that was extremely critical of the U.S. involvement in Iraq and Afghanistan… .” In addition, this cable reveals Zaragoza advised U.S. officials that “the only way out” for the United States government was for it to prevent Spain from being able to claim jurisdiction by opening its own investigation into the acts alleged in the complaint.

This cable also indicates that on March 31 and April 1 of 2009, U.S. officials discussed the case with Spanish officials from the Ministry of Foreign Affairs and the Ministry of Justice, pressuring the Spaniards who in turn tried to reassure them. The Spanish Foreign Ministry’s Chief of Staff Agustin Santos reassured that “universal jurisdiction cases often sputtered out after the initial burst of publicity … [and that] they tended to move very slowly through the system.” Aurora Mejia from the Ministry of Justice expressed that her Ministry reacted to the case with “horror.” U.S. officials in turn “stressed to both that this was a very serious matter for the USG [U.S. Government] and asked that the [U.S.] Embassy be kept informed of any developments,” in effect pressuring the Spanish government to interfere with its independent judiciary and report back on how things progressed . U.S. officials end this cable by reflecting that while they know the Spanish government, “whatever its disagreements with the policies of the Bush Administration,” is trying to improve its relationship with the U.S. government and “get the Spanish public focused on the future of the relationship rather than the past,” they are worried because they “do not know if the [Spanish] government would be willing to take the risky step of trying behind the scenes to influence the prosecutor’s recommendation on this case or what their reaction to such a request would be.”