On a sunny Spring morning on April 8, 2003, an American tank that had been positioned for hours on the Al Jumhuriya bridge in Baghdad spun its barrel towards the Palestine Hotel, fired a mortar shell across the Tigris River, and hit floors fifteen and sixteen, killing Ukrainian photographer Taras Protsyuk and mortally wounding Spanish cameraman José Couso.
Protyuk, of Reuters, and Couso, of Telecinco, were among the scores of unembedded journalists who were covering the American occupation of Baghdad live on that deadly April 8 morning when, in the space of three hours, the U.S. military attacked three different media sites, killing three reporters and wounding several others.
"They hit me, I can't believe it," Couso gasped as he was carried on a bed sheet out of the hotel.
Couso had spent the morning on the balcony filming the tank on the bridge, and he had even exchanged greetings with American soldiers across the Tigris, according to Telecinco reporter Jon Sistiaga. He was rushed to a Baghdad hospital with a severely wounded leg, which a team of doctors tried to amputate to save his life. But he had lost too much blood and died after the operation.
Ten years later, on a chilly Madrid morning, José Couso's family and friends gathered in front of the U.S. Embassy to remember him and to continue to demand justice. Journalists set their cameras on the ground, as they did in 2003 to protest his killing during a press conference by then-president José María Aznar, who supported the US-led invasion. Those present included journalist Olga Rodriguez, who was at the Palestine when the hotel was attacked.
"While we took care of our dead and wounded, the U.S. military took Baghdad," she said. "There are hardly any images of those first 24 hours; there was almost a total blackout. They effectively managed to silence the independent media on those critical hours."
The Couso case is the story of an extraordinary family that has battled against powerful forces for a decade, refusing to give up in the face of tremendous adversity. It is the story of David versus Goliath. They have managed to keep a criminal case open in Spanish courts despite strong opposition from their own government, under fierce pressure from the United States.
I met his mother and his siblings soon after Jose's death and have witnessed the emotional roller coaster they have been forced to ride on as the case was closed and reopened numerous times, as Spanish government officials broke promise after promise, and as they have fought to keep José's memory alive and to obtain justice for his killing.
One month after José's death, in May of 2003, the Cousos took the case to Spain's National Court, which has jurisdiction over universal justice cases. Santiago Pedraz, a young magistrate from the court who has followed in the footsteps of well-known judge Baltasar Garzón, has spent the past ten years investigating the attack, even traveling to Baghdad in January of 2011 with several eyewitnesses for an on-site inspection.
Pedraz, who sees evidence of war crimes, has issued arrest orders on three separate occasions against three U.S. troops who allegedly carried out the attack: Sgt. Thomas Gibson, the tank's commander, Cpt. Philip Wolford, who allegedly ordered the attack, and Wolford's superior, Lt. Cl. Philip de Camps, who allegedly gave the authorization. The judge has requested that all three be extradited to Spain for questioning, but so far Interpol has refused to carry out the orders, alleging that its rules do not permit arrests and extraditions in military cases (although it has done so on numerous occasions, most recently in the case of a Croatian accused of war crimes). Pedraz has also indicted General Bufort Blount and Colonel David Perkins, two commanding officers who allegedly authorized the attack.
Pedraz has justified his efforts by saying that although the Pentagon conducted an investigation in August 2003 that cleared the officers, he does not believe the U.S. version of the attack, which changed several times early on. The Pentagon's published version holds that the American troops attacked the hotel when they believed that shots were being fired against them from the hotel roof, where they also saw an Iraqi forward artillery observer (or lookout). The U.S. has insisted that there was never any intent in hitting journalists.
But according to the Couso family lawyer, the Pentagon's version does not hold up for several reasons. "None of the scores of eyewitnesses of the attack saw sharpshooters or heard shots coming from the hotel," said the lawyer, Enrique Santiago. "In 2011, judge Pedraz stood on the Al Jumhuriya bridge in Baghdad with several experts in physics. They were able to determine that using the tank's available viewing equipment, the Americans were perfectly able to see who they were shooting at. There was no mistaking: what they saw that day was Jose's camera pointing in their direction, and it had been there for hours." Santiago, who accompanied Pedraz to Baghdad, said that "two American Cobra helicopters hovered above us the whole time we were on the bridge, trying to intimidate us."
Javier Couso is clear about what he thinks happened: The attack that day on the Palestine, as well as on the Al Jazeera and Abu Dhabi TV headquarters, was a war crime. "It was an attack against journalists trying to report independently on the taking of Baghdad," he said. "Recently I learned that one of the indicted officers, Colonel Perkins, had a FOX TV crew with him in Baghdad on the day that he ordered the attacks. He took that crew to the presidential palace so they could film the taking of Baghdad from there. That is the version that the U.S. military wanted of the invasion."
The Couso criminal case in Spain has run up against intense pressure from the United States government. A State Department official reportedly said that "it will be very, very cold in hell" before the U.S. allowed its military personnel to be interrogated by Pedraz. Wikileaks cables revealed that U.S. diplomats in Madrid urged successive Spanish government officials, including the Vice President and the Foreign Minister, to oppose the investigation and that those officials complied, going as far as providing the Americans with legal advice on how to stonewall the judge's requests for information and evidence.
Successive Spanish administrations -- even that of socialist José Luis Rodriguez Zapatero, who angered George W. Bush when he withdrew Spanish troops from Iraq -- have consistently blocked Pedraz's efforts to obtain evidence from the U.S. and managed to have the case shelved several times. Finally, after an appeal by the Cousos, the Spanish Supreme Court ordered it reopened in 2010. The case is still in the investigation stage and could only go to trial if those indicted are arrested and brought to Spain, as Spanish law does not allow in-absentia trials.
One of the key pieces of evidence is the statement that former Army Sgt. Adrienne Kinne, who worked as an Army intelligence officer at the time of the invasion, made to Democracy Now! in May of 2008. Kinne had been charged with listening to intercepted conversations in Baghdad that included those held inside the Palestine Hotel, the very place that the Pentagon had urged unembedded journalists to stay in. Kinne, who since has joined the group Iraq Veterans Against the War, told host Amy Goodman that she had seen the Palestine Hotel on a Pentagon target list before the attack.
"I went to my officer in charge, and 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 shouldn't we make an effort that the right people know the situation?" Kinne said on the show. She said her officer told her that "it was not my job to analyze... and that someone higher up in the chain knew what we were doing."
This testimony is key in demonstrating that the attack against the Palestine Hotel was premeditated and had criminal intent, according to Santiago. Goodman testified in court before Pedraz in Madrid in July of 2012, verifying that the interview with Kinne took place. Pedraz has requested that Kinne herself testify in court and the Couso family has reached out to her on numerous occasions. Kinne, who works at the VA counseling war veterans, has so far refused. In a letter to Javier Couso in 2008, she said that while she sympathized with his family's loss, she believed that Gibson, Wolford and De Camps were merely following orders and that George W. Bush, Dick Cheney and other top US officials at the time should be the ones prosecuted for war crimes.
According to Santiago, "Kinne has said more recently that she considers it treason to testify in a foreign court against fellow soldiers, but she would be willing to do it before a US court." Pedraz has sent a questionnaire for her to answer and has requested that US courts gather this testimony, under a bilateral agreement for criminal investigations signed by both countries. So far, the US has refused to cooperate, and the Spanish government has not aided the judge's efforts.
"Our government could insist on reciprocity in the bilateral agreement and refuse to cooperate with U.S. investigations, which would amount to tremendous pressure because Spain is one of the main partners of the US in the fight against drug trafficking" said Santiago. "Ultimately, Spain could even take the U.S. to the International Court of Justice for non-compliance."
Javier Couso is incensed by the Spanish government's active opposition to the case. In trying to have the case shelved, officials insist that there is no chance at trial and that it is better to turn the page.
"What really hurts is seeing that our own government has given up sovereignty and is more intent on helping the U.S. military, which seeks impunity for this crime, than my family, which is seeking justice," he said. "But we have not given up hope. A trial is difficult but not impossible."
Javier, who has followed in José's footsteps and become a cameraman, has traveled to Iraq several times. He visited Baghdad soon after his brother's killing to better understand what happened and to personally thank the Iraqi team of doctors and nurses that tried to save José's life. He has also met with scores of Iraqis who have lost loved ones. "About one million Iraqis have died so far as a result of the war," he said. "Most of their families do not have a voice. So we must use our voices to denounce their suffering as well."
As he reflects on the last ten years, Javier speaks of "a time of great suffering, in which we have encountered evil but also tremendous goodness, and that is what keeps us going." Hearing these words, his mother Maribel, who sits nearby, wipes tears from her eyes.
María Carrión, former senior producer for Democracy Now!, is a freelance journalist and documentary filmmaker based in Madrid.