“The U.S. Government Did al-Qaeda a Big Favor”

High-ranking advisers in the Bush administration have been indicted in Spain on charges of torture committed at the Guantanamo prison compound. Gonzalo Boye Tuset is a Chilean attorney who, in addition to the Guantanamo trial, has represented Palestinian civilians wounded during the Gaza war in their suit against the Israeli army. He was interviewed by Johannes Schulten.

Johannes Schulten (JS): You filed charges in the Spanish court against high-ranking members of the George W. Bush administration for approving the use of torture on Guantanamo prisoners. How did that come about?

Gonzalo Boye Tuset (GBT): I represented a Chilean victim at the trial of the 2004 Madrid bombers in Spain. We discovered that one of the accused had been wrongly interred at the U.S. prison camp at Guantanamo. The testimony he gave during that trial proved worthless because it was gained by using torture. It wasn’t only that people were exposed to unbearable pain; the use of torture also deprived them of their constitutional rights. With Guantanamo, the American government did al-Qaeda a huge favor.

JS: This hearing only indicted the Guantanamo attorneys. Why didn’t you drag the big fish into court immediately?

GBT: The accused weren’t the ones who ordered the torture, but they were responsible for determining the legality of using it at Guantanamo. They were the ones who made torture possible because they determined that U.S. law could be changed to allow it. The charges apply to all high-level members of the Bush administration. That includes Alberto R. Gonzales and David Addington, the legal advisers to the ex-president and his vice president, Dick Cheney. Of course, they only represent a starting point for identifying the rest of those involved and bringing them to justice.

JS: How does the American definition of torture differ from that of international law?

GBT: According to current American law, it only becomes torture when the pain induced is so severe as to result in near-death. There are 18 different permissible acts of torture under U.S. law that are prohibited by the United Nations Anti-Torture Convention. The U.N. convention defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession.”

JS: Why Madrid? Wouldn’t it have been possible to conduct this trial anywhere else?

GBT: In Spain, no public prosecutor’s office is necessary to bring charges. The principle of allowing individuals or “the people” to bring charges is in place in Spain. Anyone who was the victim of a crime may conduct his own trial, and that holds true also for organizations representing general interests.

That’s an advantage because the office of the public prosecutor is often subordinate to the government. Besides that, Spanish law permits the prosecution of crimes committed outside its own national boundaries, so-called universal jurisdiction. A trial consists of three parts. We’re presently in the first phase, the research phase, and we’re awaiting an answer from a United States board of inquiry begun some five months ago by Judge Baltasar Garzón. After that comes the evidential phase and then the actual trial.

JS: The Spanish Parliament abrogated the principle of universal jurisdiction last October. Is there a connection between that and these trials?

GBT: Clearly, it is the response of a weak government to two trials it doesn’t like: the Guantanamo trial and another case brought to me by Palestinian civilians who were wounded by the Israeli army during the Gaza war. There was no pressure from Washington.

JS: What is the second trial about?

GBT: The Israeli army tried to assassinate a suspected Hamas activist with a bomb. Fourteen people were killed in that attempt. Instead of arresting and trying him in court, he was murdered.