Spanish Court Seeks Arrest of U.S. Soldiers in Hotel Attack

[Judi Lynn]

Source: Time Magazine

Spanish Court Seeks Arrest of U.S. Soldiers in Hotel Attack
By Lisa Abend / Madrid Thursday, Jul. 29, 2010

In the seven years since she watched her colleague José Couso bleed to death, Olga Rodríguez has experienced many ups and downs in her quest to bring those responsible to justice. But Thursday was one of her good days. On the morning of July 29, Spain's National Court announced that it has re-issued an international arrest warrant against three U.S. soldiers it implicates in an attack on Baghdad's Hotel Palestine, where Rodriguez and Couso, along with dozens of other journalists, were based during the Iraq war.

"As a friend, as a reporter, and as a citizen, I'm very pleased," Rodríguez tells TIME. "It's vital — for the sake of journalism and the sake of democracy — that this investigation go through to the end."

On April 8, 2003, one day before U.S. troops officially captured Baghdad, a U.S. tank fired a single incendiary shell on the hotel, killing Couso, a cameraman for Spain's Telecinco television station, and Reuters journalist Taras Protsyuk. Since then, Couso's colleagues and family have pursued a criminal investigation against the U.S. military. Their initial case, filed in May 2003, was eventually dismissed by Spain's National Court, which cited a lack of jurisdiction. But when the higher Supreme Court reviewed the case in December 2006, it disagreed. The case was returned to the National Court, which in 2007 issued arrest warrants against Sgt. Thomas Gibson, the tank sergeant who fired the shell, Captain Philip Wolford, who ordered the attack, and commanding officer Colonel Philip deCamp. A year later, the court again shelved the case, saying it had insufficient evidence to proceed with an investigation.

But on July 26, Spain's Supreme Court again ruled that the case should continue. On Thursday morning, the National Court took up the investigation for the third time, again ordering the three men to appear in its courtroom or face extradition.



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[Citizen Worker]

1. A good first step but how far will it go is the question.

[Ghost Dog]

2. I believe Spain & USA have signed international & bilateral treaties which mean

the USA should comply with this international arrest warrant. Is that not so?

At this stage, the investigating magistrate merely wants to ask these guys a few questions, I understand.

[hack89]

3. I doubt that it covers soldiers in time of war. nt

[Ghost Dog]

5. I believe that the presence and actions of US military bases

and secret service personnel in Spain are subject to minutely negotiated mutual agreements...

...And, I am not aware that there was legally any 'state of war' involving these three guys and their commanders in existence at the time, according to your own Congress, nor at the moment, are you?

[Pavulon]

8. Spain has hundreds of millions of dollars worth of US military equipment

which we will obsolete by refusing to sell parts to them if they take any real steps towards this action. Spain can not afford to persue a political tail chasing event like this. They have no recourse, and are toothless.

Pretty sure those agreements dont cover war correspondents in war zones.

[Ghost Dog]

11. The F16s, you mean?

Easily replaceable by European technology. Spain itself is the world's 6th largest arms exporter (edit: in 2009), you know, and participates in many EU high-tech arms consortia.

Pride goes before a fall.

[Pavulon]

13. They are broke and I mean the Aegis weapon systems

which have no european equivalent and the bulk of their navy which is supplied by US companies.

[Ghost Dog]

14. Ah. Does Spain have Aegis? Ok, sure.

But I believe I read that Europe is working on its own alternative to Aegis... Hang on... So much technology is jointly-developed these days... Aren't there European (Thales) versions of many components of Aegis already?

In any case, we know Europe certainly, but unfortunately, should be working to update its own military systems and forces. Not least, for the sake of the know-how and the jobs.

[hack89]

15. The soldiers are not stationed in Spain and the incident was in Iraq

status of forces agreements (SOFAs)with Spain apply only in Spain.


The state of war argument is weak - the war had the support of Congress. Few in the US government have argued that the war is illegal. The War Powers Resolution of 1973 has serious constitutional issues and cannot be considered the final word on the matter since the last declared war we have fought was WWII.

[ttwiddler]

28. State of war

During the treason trials after the Korean War, the defendants tried to argue no state of war existed. They based this on the lack of a WW2-style general declaration or even an IWR-style conditional declaration of war. The Supreme Court decided that what mattered was the reality of a shooting war, not following procedures. Given that, even if you view IWR as insufficient constitutionally, the simple reality that combat has occurred would override that. If this doesn't make sense, sorry I'm a bit tired.

[Ghost Dog]

30. That certainly makes sense, since that is the observable reality, ttwiddler.

... Which would imply that the rest of the world should recognise (if it hasn't already) that the USA should be considered to be in a permanent 'state of war' and act accordingly (if it isn't already).

[FBaggins]

36. That's pretty close, but incomplete.

What the courts decided wasn't just that a de-facto cwar existed (whether declared or not), they determined that if deadly force is being used and the Congress voted to authorize that use of force and/or to pay for it, the constitutional requirement had been satisfied.

You can call it a tomato if you like, but if Congress votes to authorize the President sending our troops into combat... it's a war.

[ttwiddler]

66. Pretty much

The "pay for it" part is the key. There was no enabling resolution for Korea, but the last batch of treason trials came out of that war.

[flyarm]

23. we are also a signatory of the Geneva Conventions..how's that working so far? eom

[FBaggins]

35. The treaties would be irrelevant in this case.

The alleged crime took place outside of Spain... the alleged criminals are not Spanish citizens, nor are the victims.

IOW, they have no jusidiction... they just want to put in their .02 to the conversation.

If a Nevada D.A. reads about a crime in Florida committed by a NY resident... and decides that he wants to prosecute... the fact that he convinces some nutjob court to grant a subpoena does not mean that NY is going to arrest the guy (and if he did it would immediately quashed by a NY court).

None of which, of course, has anything to do with whether a crime was committed or not.

[Ghost Dog]

38. This particular victim, José Couso, was a Spanish citizen. Thus, the Spanish High Court

has jurisdiction.

[FBaggins]

40. I didn't realize he was Spanish... but no, it wouldn't make a difference.

He wasn't on Spanish soil at the time.

But that at least explains why they're making noise about it. It's to show that they're standing up for their citizens (even if they really know that it isn't going anywhere).

[Ghost Dog]

55. Under Spanish law, the Spanish court has jurisdiction.

And, under the International Criminal Court system, this would be the case: Where the courts of the accused country fail to act, the courts of the aggrieved party can assume jurisdiction.

The main argument offered by the USA when refusing to join the ICC system is always that the USA does not need to because it is a "nation of laws" that can be trusted to do justice where justice needs to be done, and especially in high-crime high-profile international situations. And it is blindingly clear sometimes, as here, that there is no way this is so.

[hack89]

57. Wrong on several counts

1. What Spanish law says is irrelevant to US citizens on US soil. We don't recognize their jurisdiction.

2. The ICC only applies when the accused is a member of a state which is a party to the Rome Statute of the International Criminal Court. America has never ratified the Rome Statute so the ICC cannot prosecute Americans.

3. The ICC only applies to instances when the country of the accused refuses to investigate. There was an investigation - we did not fail to act.

4. The ICC only applies when the crime is committed in a member state. Iraq has not ratified the Rome Statute so crimes committed there by Americans cannot be prosecuted by the ICC.

The main reason the US refused to join the ICC was to avoid the political prosecution of US military personnel overseas. Just like what the Spanish are attempting to do.

[Ghost Dog]

58. What is political about seeking to find out why José Couso was killed?

[hack89]

59. He is being used as a pawn to embarrass the US government

there was an investigation. Spain doesn't like the result. Too bad - they just need to accept it. No other nation in the world would accept such an insult to national sovereignty - why should we?

[hack89]

4. Nothing will happen

the US will not let tragic accidents during wartime be criminalized by other countries.

[Ghost Dog]

7. One doubts the 'accidental' nature of the event, since it has already been established

that the tank commander checked, with precise coordinates, the situation with his chain of command, and after a pause was ordered to fire.

Actually, I think what we'd like to see are some of those higher levels of command brought in for questioning (all the way up to the "top"). Maybe some of those commanders would like to volunteer themselves. It would be the honorable thing to do.

[hack89]

16. There is no evidence that the chain of command knew

that the specific target was a group of reporters. From their perspective, there is no reason to believe that Iraqi combatants were not at the hotel.

[Ghost Dog]

17. Evidence? That is precisely what the Spànish High Court would like to review:

all the evidence.

[hack89]

21. Then they should come to America and interview the soldiers

they don't have the jurisdiction to do anything else. A Spanish court has no power in America.

[Ghost Dog]

27. Give the Spanish court access to all the information and sources

of information (including military and civilian chains of command) vía a judicial comission with full investigatory powers in the US?

Yes, that might work.

[hack89]

31. No

they can sit down and interview the soldiers and their chain of command. No sworn testimony, no threat of arrest.

We are a sovereign nation - Spain has no judicial powers here. And US courts cannot act as the agent of other countries.

What you are asking for no country in the world would ever do.

[Ghost Dog]

33. Then, at least hand over to the Spanish court a full unredacted set of documentation

from the Pentagon's own internal inquiry into this matter, as I believe was requested in the first place by the Court (and refused), why not?

[hack89]

37. No - it is none of their business

Since Spanish courts have no jurisdiction over the matter, there is no point in giving them access to the investigation. We have no obligation to help grandstanding Spanish judges and their ridiculous idea of "universal jurisdiction". Can you imagine the fuss if American courts made similar demands to European countries?

[Ghost Dog]

39. What do American courts do when an alleged murder of a US citizen abroad is commited?

You expect the courts in that country to investigate and prosecute, right?

[hack89]

41. I would expect the country where the crime was committed to investigate and prosecute

American courts would not consider for a second, that for example they could arrest and prosecute a Spaniard for killing an American in Germany. It would be an issue for the German courts. And we would have no choice but to accept the verdict. Now in this case, everything is complicated even more by the fact that the deaths took place in a combat zone during a war. Accidents in war are not crimes.

We investigated the case - it was determined that there were no grounds for prosecution. Spain doesn't like the answer - well too bad. They don't have the right to investigate and prosecute Americans for crimes not committed in Spain.

[Ghost Dog]

46. We investigated - no grounds.

There's the rub. An internal military investigation is really not good enough.

[FBaggins]

52. Not good enough for you perhaps

And whether or not I agree is irrelevant (just as is Spain's opinion), because it IS good enough for the US Government.

[hack89]

56. The US government's opinion is the only one that counts

why is it so hard for you to grasp that Spain has no jurisdiction? It does not matter what they think about the US military investigation - they don't have a vote on the matter.

[FBaggins]

42. Nothing.

American courts have no jurisdiction in those cases.

The State Department would attempt to get that nation to investigate/prosecute, but the other nation has to be convinced that a crime has been committed... the State Dept doesn't get to make that call.

[Ghost Dog]

47. I submit that at the moment of the invasion, which you say was war, then

the USA had declared Iraqui courts to have no further jurisdiction. Therefore the USA itself had assumed judicial responsibility for everything that was happening in that country.

In that case, the alleged murder of a civilian in this case should be properly tried in a competent US court of law.

It is because it is clear that no such "fair trial" will take place in the USA that the Spanish courts seek to apply Spanish law.

[FBaggins]

50. You don't GO to trial

until the authority with jurisdiction determines that there's reason to believe that a crime has been committed. Whether you believe that Iraq or the USA should be that authority doesn't matter in this case since neither believes that there was a crime.

In that case, the alleged murder of a civilian in this case should be properly tried in a competent US court of law.

Alleged murders don't get tried unless it's "alleged" by a competant authority. That isn't the case here. If you believe that your sister was murdered but the D.A. sees no evidence of a crime... there isn't going to be a trial. And if you convince the king of Zamunda that she was murdered, he can't do anything to help you.

It is because it is clear that no such "fair trial" will take place in the USA that the Spanish courts seek to apply Spanish law.

And they have zero ability to do so. They are merely expelling bodily fluids into the wind.

[Ghost Dog]

53. Sorry, yes, you are right. It would be a federal public prosecutor, in this case,

who would examine the evidence and decide whether to proceed to trial, in the US, right?. In Spain this is the role of the examining magistrate. I misused the term 'trial' to describe also this stage of proceedings.

One worry with the Pentagon's (I use 'Pentagon' as shorthand) decision that no crime was committed, of course, is that it is the Pentagon, actually, that is suspect in this case, along with others giving orders all the way up, perhaps demonstrably, to Mr. Cheney's office or that of Little Boots. The fact that three specific media locations were hit that day in what could be seen as a deliberate sequence (and such a threat to the media to 'behave' was indeed palpable, as from where I was viewing, I recall at the time) suggests that orders may have come from the top.

Only the Pentagon, which stands accused, has investigated. And only the Pentagon has access to the evidence. This ought to disturb American public opinion as much as it does that of the rest of the world.

[EFerrari]

32. Whistle-Blower Points to Target List in U.S. Attack on Hotel

Said Kinne: “e were listening to journalists who were staying in the Palestine Hotel. And I remember that, specifically because during the buildup to ‘shock and awe’ ... we were given a list of potential targets in Baghdad, and the Palestine Hotel was listed.

utting one and one together, I went to my officer in charge, and I told him that there are journalists staying at this hotel who think they’re safe, and yet we have this hotel listed as a potential target, and somehow the dots are not being connected here, and shouldn’t we make an effort to make sure that the right people know the situation? And unfortunately, my officer in charge ... basically told me that it was not my job to analyze ... someone somewhere higher up the chain knew what they were doing.”

http://forum.prisonplanet.com/index.php?topic=146192.0

[Ghost Dog]

34. Thanx.

(Although I see nothing apropos at link)?

We had, 1st, the attack on Al Jazeera's office/studio/camp; 2nd, half an hour later or so, on Abu Dhabi TV's; 3rd, another 30 minutes or so later, on a specific room of the Palestine Hotel which may have been thought to be occupied by Reuters?

This is what I'm hearing: Correct me if I'm wrong. Someone knew what they were doing.

[hack89]

43. Prisonplanet? Really?

Alex Jones is a nutjob - he is both a Truther and a Birther.

http://www.prisonplanet.com/obama-confirmed-ineligible-for-office.html

[EFerrari]

44. Democracy Now, really. Here's a direct link to just one of the segments.

There are more in the archives. I must have been asleep this morning

http://www.democracynow.org/2008/10/10/headlines#14

[Ghost Dog]

48. Ah, that's better, thanks. n/t

[EFerrari]

51. Sorry. I should know better than to post links before coffee!

Although, the PP link goes to a Goodman column but, still, ack.

[ProgressiveProfessor]

19. It has never been shown that the upchaiin personnel had any knowledge of

civilians there.

[Ghost Dog]

20. You mean the CNN crew, for example, were not civilians?

Come off it. The Palestine Hotel full of international journalists was on all the maps.

(And See: http://www.democracynow.org/2005/3/23/hotel_palestine_killing_the_witness_documentary )

[ProgressiveProfessor]

22. You will have to do better than that

Short of tactical radio transcripts its all conjecture, not unlike the road block and the 1st Armored

[Downwinder]

24. Perhaps wikileaks will provide those with the Iraq Log.

[Ghost Dog]

29. !

:)

[Pavulon]

6. Never going to happen, ever.

for a litany of reasons.

[Ghost Dog]

9. Yes. The fact that there is no genuine "rule of law" in the USA

being the first of them.

[Pavulon]

10. No this is why we dont do the ICC, political dumbshittery

a tank crew is not responsible for this action in a war zone. Sorry, no way, no how. If there was criminal misconduct it would be covered under UCMJ.

[Ghost Dog]

12. I agree the tank crew was not legally responsible (see #7) n/t

[ProgressiveProfessor]

18. More along the line that the concept of international law is poorly implemented at best

[ronnie624]

25. It is especially hard to implement,

when a very large, powerful political/economic entity - a global empire, say - flouts international law at will, and refuses to abide by any established standards for conduct. That's what makes it really difficult to implement international law. It's rather difficult to set good examples, if the most powerful country on earth, is the quintessential "rogue nation".

[Ghost Dog]

26. ... And the fact that an investigation, never mind a prosecution, in this case

would be the thin end of a very large international judicial wedge.

[No Elephants]

45. Spanish judges hate us for our freedoms.

[Recursion]

49. I'm iffy on charging the gunner

A tank gunner can't even see what he's shooting at; he has to rely on the commander who gives the order to fire.

[Ghost Dog]

54. They only want to question the tank crew, I assure you.

They know that they need to reach higher up the chain of command.

But, officially, I don't think the court is supposed to know as much as some journalists, and therefore we ourselves know (eg. from the democracy now! link above) about the immediate chain of "superior officers" and these guys stories. Information which, on questioning, the crew would perhaps choose to volunteer.

Then, perhaps, those officers would be invited to answer some questions, ... and so on up the chain until we find out who took what decisions when and why.

There's only an arrest warrant out for these men because they refused (or were not permitted) to speak to the investigating magistrate voluntarily when requested to do so.

[hack89]

60. To what end?

does anyone really think that the Spanish courts could actually indict and arrest senior US military and government officials? They don't have the right or the power - so why should the US government play along with a charade?

Why couldn't Spanish officials come to America to interview the soldiers?

[Ghost Dog]

64. To what end? To know the truth.

It's as simple as that.

[hack89]

65. So can America arrest anyone anywhere looking for the "truth"? nt

[MikeW]

62. and what would that prove

They only answer to the UCMJ ... no one else.

Esp. not some foreign judge.

Nothing but Spain trying to make headlines.

[Ghost Dog]

63. Ah, well apparently that's not quite correct:

Relying only on Spanish journalism/editors (:shrug:), I now see that where some say it is the tank crew the court seeks to arrest and question, others (and sometimes in the same article) say the warrant refers to "Sgt. Thomas Gibson, Captain Philip Woolford and Lieutenant-Colonel Philip de Camp". So, it would seem the Spanish investigation may have already managed to move some small distance up the chain of command.

The investigating magistrate, apparently, emphasises that journalists had been advised by the Pentagon by remain in the Palestine Hotel and that the US military knew very well that there were civilians in the Hotel.

The magistrate is organising a 'judicial commission' to travel to Baghdad to see for himself where these events took place. He will also seek to speak to Al Jazeera and Abu Dhabi TV employees who were also attacked that day.

My apologies for any confusion.

[citizen snips]

61. note to Spain

We will not extradite our own soldiers on some toothless witchhunt.