According to a cable released [...]]]>

Spain’s highest court ruled that a controversial case against US officials for authorizing the torture of prisoners at Guantanamo Bay could proceed, rejecting an attempt by a Spanish prosecutor to end the investigation. The decision is a major victory for human rights activists, and a blow to the US government.

According to a cable released by Wikileaks, the Obama administration tried to kill the case, one of two being pursued by Spanish authorities. Here’s a report by the Miami Herald:

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.”

And here’s some background on the case, from the Center for Constitutional Rights:

On April 27, 2009, Judge Baltasar Garzón issued a decision opening a preliminary investigation into what he termed  “an authorized and systematic plan of torture and ill-treatment on persons deprived of their freedom without any charge and without the basic rights of any detainee, set out and required by applicable international conventions,” in US detention facilities. This decision related to the alleged torture and abuse of four former Guantánamo detainees: Hamed Abderrahman Ahmed, Ikassrien Lahcen, Jamiel Abdul Latif Al Banna and Omar Deghayes. All four men had previously been the subject of a criminal case in Spain, but were subsequently acquitted because of the use of torture and other forms of serious abuse to which they had been subjected during their detention and interrogations at Guantánamo; Judge Garzón had previously issued the extradition requests for Messrs Al Banna and Deghayes. Mr Ahmed is a Spanish citizen and Mr Ikassrien had been a Spanish resident for more than 13 years. The decision presents six pages of facts related to the torture and abuse the four men suffered including being held in cells made of chicken-wire in intense heat; being subjected to constant loud music, extreme temperatures and bright lights; constant interrogations without counsel; sexual assault; forced nakedness; threats of death; and severe beatings. The preliminary investigation did not name potential defendants, but included “possible material and instigating perpetrators, necessary collaborators and accomplices.” Judge Garzón found that the facts relate to violations under the Spanish Penal Code, the Third and Fourth Geneva Conventions, the Convention Against Torture, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and the Organic Law of the Judicial Power (Article 23.4).

The principle of universal jurisdiction for prosecuting human rights abuses is grounded in the terrible consequences of impunity. If a country has the will to prosecute its own offenders, and a neutral judiciary with which to do so, foreign courts won’t take up the case.

But that is obviously not the case with the United States, where a former president has admitted publicly to personally authorizing the torture of prisoners, yet no domestic investigation was launched in order to bring him or his advisors to justice.

PS: My 2007 interview with CCR’s Michael Ratner is among my favorites: Human Rights Crusader Michael Ratner: We’ll Keep Going After Bush and Cheney When They Leave Office

Cross-posted around town.

But Georgia state Rep. Bobby Franklin, R-Marietta, has to be considered the top contender. He was the one who proposed a law that would require rape and sexual assault victims — but not the victims of [...]]]> With the rise of the Tea Partiers, there’s intense competition for the title of Craziest Wingnut Holding Public Office.

But Georgia state Rep. Bobby Franklin, R-Marietta, has to be considered the top contender. He was the one who proposed a law that would require rape and sexual assault victims — but not the victims of any other crimes — to be called “accusers” unless there was a conviction in their cases.

Then Franklin introduced a bill that would do away with drivers’ licenses, arguing that they “are a throw back to oppressive times.” As CBS reported:

In his bill, Franklin states, “free people have a common law and constitutional right to travel on the roads and highways that are provided by their government for that purpose. Licensing of drivers cannot be required of free people, because taking on the restrictions of a license requires the surrender of an inalienable right.”

(More details on both measures here.)

Now Lindsay Beyerstein brings us word of Franklin’s latest:

A Georgia Representative has introduced a bill to investigate all unsupervised miscarriages as crime scenes. Don’t believe me? Here’s the relevant language from HB 1, downloadable from legislature’s website:

When a spontaneous fetal death required to be reported by this Code section occurs without medical attendance at or immediately after the delivery or when inquiry is required by Article 2 of Chapter 16 of Title 45, the ‘Georgia Death Investigation Act,’ the proper investigating official shall investigate the cause of fetal death and shall prepare and file the report within 30 days[...]

Beyerstein adds that the bill “is radical even by the standards of people who think fertilized ova are people.” That’s an understatement — according to MoJo, ”Both miscarriages and abortions would be potentially punishable by death.”

One has to conclude that Bobby Franklin doesn’t need a challenger so much as a decent shrink.

Cross-posted at AlterNet and my butt-ugly personal blog.

The justifiable homicide concept burst into national consciousness in 1993. It was [...]]]> Now that the brouhaha over a proposed bill in the South Dakota legislature that would have redefined the murder of abortion providers as “justifiable homicide” is largely over, and the bill has been tabled, let’s consider the origins of the idea.

The justifiable homicide concept burst into national consciousness in 1993. It was contained in two “Defensive Action Statements” which were signed at various times by 33 people. The text of the first as authored by a well-known Gulf Coast antiabortion activist, Paul Hill in 1993 read:

“We, the undersigned, declare the justice of taking all godly action necessary to defend innocent human life including the use of force. We proclaim that whatever force is legitimate to defend the life of a born child is legitimate to defend the life of an unborn child. We assert that if Michael Griffin did in fact kill David Gunn, his use of lethal force was justifiable provided it was carried out for the purpose of defending the lives of unborn children. Therefore, he ought to be acquitted of the charges against him.”

The second, using similar language, was issued on behalf of Paul Hill who had murdered Dr. John Britton and his unarmed escort. Hill had previously also issued a 13 page manifesto about the need for “defensive war” and called for the formation of Christian militias to lead a revolution against the federal government. The Army of God in turn, is populated with people who adhere to similar ideas, many of whom see themselves as engaged in a long-term theocratic revolutionary struggle.

The idea was also introduced via a crude cartoon by far-right Catholic priest, David Trosch. The cartoon depicted a man holding a gun on a doctor performing an abortion and was titled: “justifiable homicide?”

Meanwhile, Operation Rescue activist Michael Hirsch a law student at Pat Robertson’s Regent University Law School, had developed a legal theory of the justifiable homicide of abortion providers which was the core of his 1993 Regent University Law School thesis. It had been prepared for publication in the school’s law review, but all 500 copies of the review were suppressed prior to publication because Paul Hill’s assassination of Dr. Britton suddenly made the article a PR nightmare. Hirsch has argued that the murder of Dr. David Gunn was “consistent with Biblical Truth” and under Florida law, justifiable if one “reasonably believes that such force is necessary to prevent the immediate death or great bodily harm to himself or another.” Hirsch wrote that the “presuppositions” he brings to any discussion “come from the Bible… it is impossible to fully consider the hypothetical defense of Michael Griffin without Scriptural support for the argument.”

Hirsch later sought to test his theory in an appeal of Hill’s murder conviction, but his theory was rejected by the courts, and Hill was executed by the state of Florida for his crimes.

The notion has evolved over time. In the 1980s, attorneys seeking to defend people accused of arson against abortion facilities, unsuccessfully sought to offer the “necessity defense.” In theological circles, the idea of vigilante action on behalf of what was thought to be “God’s laws” was variously called “Defensive action” and “interposition.” Whether approached via the law or via theology, the idea was to justify criminal acts against abortion providers on behalf of the unborn.

But over time the notion of justifiable homicide has stuck, although it has no legal basis whatsoever. The Army of God uses the term to justify the assassination of Dr. George Tiller by Scott Roeder, for example. Roeder, although he had discussed justifiable homicide in 1993 with Army of God leader Michael Bray, sought to use the necessity defense in court, but the judge denied this approach was applicable.

No court in the country to my knowledge has allowed any defense in which the crime is acknowledged but excused via a necessity defense or the argument that murder of an abortion provider constitutes justifiable homicide. That is why it would have been significant if the South Dakota legislators pushing the idea had prevailed in passing the bill. It would probably have been struck down by the courts, but it would have once again raised into national debate about whether the entire notion that the assassination of abortion providers was somehow moral and legal.

In 1993 the idea that even a few people thought that the murder of a doctor was justified was shocking. But as woolly-headed as it may seem to some, the idea lives on.

(For a more detailed discussion of the origins of the theory of the murder of abortion providers as justifiable homicide see my book Eternal Hostility: The Struggle Between Theocracy and Democracy, Common Courage Press, 1997.)