by Bog Egelko
March 7, 2011
They have received little attention in the
United States, but a set of
WikiLeaks disclosures of confidential documents
has caused an uproar in Europe by showing that U.S. officials pressured
Germany and Spain to derail criminal investigations of Americans.
A set of WikiLeaks
disclosures of confidential documents
has caused an uproar in
Europe by showing that U.S. officials
pressured Germany and Spain
to derail criminal investigations of Americans.
The more than 2,500 State Department cables that
the anti-secrecy group has provided to news organizations since November
include accounts of three cases that shed new light on U.S. responses to
allegations of wrongdoing by its agents abroad:
The case of Khaled el-Masri, a German
citizen seized in Macedonia in 2003 by officers who mistook him for an
al Qaeda agent with a similar name.
He said they turned him over to U.S.
authorities, who flew him in shackles, a blindfold and a diaper to a
prison in Afghanistan, where they beat him, injected him with drugs and
Five months later, he said, he was flown to Albania
and dumped on a remote hillside without explanation or apology.
After German prosecutors issued arrest warrants
for 13 CIA agents allegedly involved in el-Masri's abduction, a February
2007 cable quoted the deputy U.S. chief of mission in Berlin as advising a
German diplomat to "weigh carefully at every step of the way the
implications for relations with the U.S." if the agents were prosecuted.
The German government withdrew the warrants five months later.
The case of four Spanish residents
who said they were tortured by U.S. interrogators at Guantanamo Bay
before being released without charges and returned to Spain.
A Spanish judge announced a criminal
investigation in January 2009 into whether six lawyers in President
George W. Bush's administration had approved torture.
They included former Attorney General Alberto
Gonzales and John Yoo, the UC Berkeley law professor whose memos
as a Justice Department attorney authorized the near-drowning technique
WikiLeaks cables from April and May 2009 said Spanish officials were being
warned about the case by diplomats from the Obama administration and by a
visiting U.S. senator, Mel Martinez, R-Fla., who allegedly told Spain's
foreign minister that the prosecution would have,
"an enormous impact on the
Miami Herald has reported that Martinez was
carrying that message for the Obama administration.
The documents also quoted U.S. diplomats as urging Spain to transfer the
case from Judge Baltasar Garzón, known for far-reaching
investigations of suspected international law violations and for criticism
of U.S. policies. The cables described Garzón as a "publicity-loving" jurist
with an "anti-American streak" and said Spain's chief prosecutor was trying
to remove him.
Spain's government has since suspended Garzón for allegedly exceeding his
authority in another case.
Another judge has taken up the case of the Bush
administration lawyers but has not decided whether to reopen it.
The case of Jose Couso, a Spanish cameraman
who was one of two journalists killed in April 2003 by a U.S. artillery
shell at a hotel in Baghdad.
A U.S. military investigation concluded that
troops were responding to reports of rocket attacks from the building, but
journalists on the scene have said the hotel was a well-known media
headquarters and was not the source of any hostile fire.
Spanish courts have authorized criminal charges
against three American soldiers, but Spanish prosecutors have moved to
scuttle the case.
A May 2007 WikiLeaks cable quoted then-U.S. Ambassador
Eduardo Aguirre as
"behind the scenes we have fought tooth and
nail to make the charges disappear."
Obama administration has refused to discuss
the content of the State Department documents or of previous WikiLeaks
disclosures about Iraq and Afghanistan.
Administration officials have focused instead on
the illegality of the leaks and the harm they allegedly caused.
Asked for comment about the cables on Germany and Spain, the State
Department referred a reporter to Secretary of State Hillary Rodham
Clinton's statements at a November press briefing, in which she called the
release of confidential department materials,
"an attack on the international
"There is nothing brave about sabotaging the
peaceful relations between nations on which our common security
depends," Clinton said.
The documents have drawn extensive news coverage
abroad, centering on their accounts of U.S. political power and foreign
A December 9 article in the influential German
newsmagazine Der Spiegel, for example, was headlined "Cables Show Germany
Caved to Pressure From Washington."
Several independent legal analysts saw nothing unlawful in the U.S. actions
but were divided about whether they had violated the norms of diplomacy.
All countries understand that "they have a political and diplomatic price to
pay" for taking on another nation's officials, said Diane Amann, a UC Davis
law professor and vice president of the American Society of International
It's neither surprising nor illegal that the United States would try to
discourage such foreign prosecutions, Amann said.
But she criticized the,
"failure of the United States itself to
conduct any apparent investigation or efforts at accountability" in
cases like el-Masri's.
Federal courts have dismissed el-Masri's suit
against the U.S. government, accepting arguments by both the Bush and Obama
administrations that secrets about the CIA's rendition program could be
exposed if the case proceeded.
Last month, the Associated Press reported that the CIA analyst who advocated
el-Masri's abduction and argued against releasing him even after colleagues
reported the mistaken identity has been promoted to run the agency's al
Qaeda unit and regularly briefs CIA Director Leon Panetta.
Ben Wizner, the American Civil Liberties Union lawyer who represents
el-Masri, said the cables show U.S. officials using,
"diplomatic muscle and subtle threats to try
to prevent accountability abroad, just as they had prevented it at
But a Stanford law instructor and former State
Department lawyer said governments commonly urge one another to consider the
foreign policy implications of pursuing a criminal case against foreign
nationals working for their countries.
"We often ask countries to do things that
are good for the United States of America," said Allen Weiner,
co-director of Stanford's international law program.
"That may be hard
for those countries to explain if it were on the front page," which
justifies keeping the discussions confidential, he said.
Another international law analyst, Scott
Horton of Columbia Law School, said laws against interfering with
criminal investigations - normally considered obstruction of justice - don't
apply to a diplomat's inquiries to a foreign government.
"They have a right, as a diplomat, to seek
information," Horton said.
But he said diplomats,
"go off track when they
start talking about removing and replacing judges," as U.S. officials
apparently did with Spain's Garzón. "Imagine if that happened in the
Garzón's probe into whether Gonzales, Yoo and
Bush administration lawyers authorized torture is on hold but could
The new judge, Eloy Velasco, has
repeatedly asked the Obama administration whether it was conducting its own
inquiry, which would make a Spanish investigation unnecessary.
According to the latest court filing, Velasco has not yet received a reply.