By Carol Rosenberg
It was three months into Barack Obama’s presidency, and the administration — under pressure to do something about alleged abuses in Bush-era interrogation policies — turned to a Florida senator to deliver a sensitive message to Spain:
Don’t indict former President George W. Bush’s legal brain trust for alleged torture in the treatment of war on terror detainees, warned Mel Martinez on one of his frequent trips to Madrid. Doing so would chill U.S.-Spanish relations.
Rather than a resolution, though, a senior Spanish diplomat gave the former GOP chairman and housing secretary a lesson in Spain’s separation of powers. “The independence of the judiciary and the process must be respected,” then-acting Foreign Minister Angel Lossada replied on April 15, 2009. Then for emphasis, “Lossada reiterated to Martinez that the executive branch of government could not close any judicial investigation and urged that this case not affect the overall relationship.”
The case is still open, on the desk of a Spanish magistrate, awaiting a reply from the Obama administration on whether it will pursue a probe of its own.
But the episode, revealed in a raft of WikiLeaks cables, was part of a secret concerted U.S. effort to stop a crusading Spanish judge from investigating a torture complaint against former Attorney General Alberto Gonzales and five other senior Bush lawyers.
It also reveals a covert troubleshooting role played by Martinez. Now a banker, he won’t discuss it.
The cause for alarm at the U.S. Embassy was what a U.S. diplomat called a “well documented” 12-inch-tall dossier compiled by a Spanish human rights group. In the name of five Guantánamo captives with ties to Spain, it accused the Bush legal insiders of laying the foundation for abuse of detainees in the months following the Sept. 11, 2001, attacks.
Of particular concern was that a swashbuckling Spanish magistrate, Baltasar Garzón, might get the probe under Spain’s system, which gave judges extraordinary investigative powers.
Garzón had earlier made headlines by swearing out arrest warrants for Chilean dictator Augusto Pinochet while he was getting medical attention in London, and Osama bin Laden. U.S. ambassador Eduardo Aguirre Jr. cast him as a publicity hound with an “anti-American streak” in one confidential cable.
If those efforts are any guide, a Spanish prosecution of the so-called Bush Six seems unlikely. Britain never turned Pinochet over to Spain for a war crimes trial, and bin Laden is still at large.
Rather, indictments would undermine U.S. diplomatic credibility on human rights and likely ground the six Bush lawyers in the United States, for fear of arrest overseas.
Another, April 1, 2009, cable shows the U.S. Embassy’s political officer and legal advisor discussing Garzón with his boss, chief prosecutor Javier Zaragoza, who expresses his displeasure with the case. Separately, a third U.S. diplomat told a senior Spanish Justice Ministry official “for international judicial cooperation” that the U.S. government considered the potential for a prosecution “a very serious matter.”
Civil rights attorney Michael Ratner, whose Center for Constitutional Rights has championed Guantánamo detainee rights, called the cables taken together “quite dramatic.”
“The U.S. prides itself on our own independent judiciary,” Ratner said. “But here you have the hypocrisy of the U.S. government trying to influence an independent judicial system to bend its laws and own rules.”
“And it’s the Obama administration doing it to protect Bush people,” he said.
Martinez, a former trial lawyer, said through two spokeswomen at JP Morgan Chase, where he’s Florida chairman, that he would not comment.
Nor would Bush’s political appointee, Ambassador Aguirre, who is now a Houston-based consultant and like Martinez came from Cuba as a teen through the Pedro Pan movement.
International prosecutions aren’t unprecedented. Bush’s father had U.S. forces invade Panama in 1989 to capture Manuel Noriega, then prosecuted him for allowing Colombian drug runners to ship cocaine through his country to the United States.
Last year, a Miami judge gave Chuckie Taylor, a U.S. citizen, a 97-year sentence for torturing hundreds of Liberians as commander of his president-father’s security unit from 1999-2003.
But by the time Spain’s Association for the Dignity of Prisoners filed the torture complaint that U.S. diplomatic circles found so troubling, the Obama White House was resisting calls to set up a Truth Commission or assign a special prosecutor to examine the legal framework that set up Guantánamo and permitted “enhanced interrogation techniques” that included waterboarding high-value detainees.
“Generally speaking, I’m more interested in looking forward than I am in looking backwards,” Obama said on Feb. 9, 2009.
In January 2002, Gonzales, as White House counsel, wrote a secret memo declaring portions of the Geneva Conventions “quaint” and “obsolete” after 9/11, such as limits on questioning prisoners and giving commissary privileges. Critics said he dismissed international law and laid the legal foundation for abuses.
As a senator, Obama opposed his nomination for attorney general in 2005. Martinez by contrast devoted his first Senate floor speech, Feb. 3, 2005, to defend Gonzales, making history as the first senator to address the chamber in Spanish. “El Juez Gonzales es uno de nosotros,” he said, addressing his remarks to Hispanic America, “Judge Gonzalez is one of us.”
By the time Martinez was campaigning against charging Gonzales, Spain’s Supreme Court had already in 2005 overturned the conviction of a terror suspect the media had dubbed “The Spanish Taliban” on grounds his Guantánamo interrogations were tainted by conditions the court called “impossible to explain, much less to justify.”
The American Civil Liberties Union unearthed, through the Freedom of Information Act, Gonzales’ “quaint” memo as well as Justice Department opinions by Bush lawyers John Yoo, now a Berkeley law professor, and Jay Bybee, now a federal judge in California, that authorized the CIA to use the near drowning technique called waterboarding that is widely condemned as torture.
Others named in the Spanish suit include former Vice President Dick Cheney’s counsel, then chief of staff, David Addington; then-Defense Department General Counsel William “Jim” Haynes and Doug Feith, a Pentagon undersecretary who handled policy issues for Defense Secretary Donald Rumsfeld.
Garzón, the activist judge, has been suspended for allegedly overstepping his authority in another crimes against humanity case, this one on home turf: The execution or disappearance of more than 100,000 civilians during the dictatorship of Gen. Francisco Franco.
But by then it was assigned to Judge Eloy Velasco, a Garzón colleague who has three times asked the U.S. government to say whether it envisions a similar investigation at home, which would supersede his efforts.
“They’ve never answered. From the record of this case they’ve ignored that it even existed,” said Katherine Gallagher, a staff attorney at the New York Center for Constitutional Rights who is now collaborating with Spanish lawyers seeking Guantánamo prosecutions.
Her boss, Ratner, says news of the meddling may cause blow-back to the U.S. political effort.
“Now that it’s been brought out that there were efforts to compromise the Spanish judiciary they’re going to have to show their independence,” he said.
Still unclear is how Martinez, a former trial lawyer, joined the effort to derail the investigation. Gonzales told The Miami Herald “I had no knowledge” about the activities of Martinez. Yoo said the same in an e-mail reply.
Neither would discuss the investigation itself.
Moreover, Gonzales argued it would be wrong to assume that Martinez, who quit the Senate four months later, was acting on behalf of any administration — even though the cable describes the future banker as delivering the message to the foreign minister in tandem with Charge d’Affaires Arnold Chacon.
“Sen. Martinez may have been simply expressing an opinion or view,” said Gonzales, who like the ambassador calls Martinez “a friend.”
But a former Bush-era State Department official said, on condition of anonymity, that Martinez got a briefing from the Embassy each time he visited Madrid, either on a congressionally funded trip or as head of an influential Miami-based nonprofit, the United States-Spain Council.
Given his pedigree as a Bush insider and 2006-2007 Republican Party chairman, Martinez had greater access than most senators in Madrid. He would invariably offer, said the official, “Is there a message you’d like me to deliver?”
If he agreed with the message, he’d convey it — in visits that at one point took him to the palace to greet King Juan Carlos.
“Mel was loyal to President Bush and loyal to the people who were loyal to President Bush,” said the former Bush-era diplomat. “He didn’t look at whether it’s the Bush administration or the Obama administration. He asked himself, `Is it the right thing to do?'”
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