November 14, 2006
NYT
German Prosecutor Asked to Investigate Rumsfeld
By MARK LANDLER FRANKFURT, Nov. 14 -- Emboldened by the resignation
last week of Secretary of Defense Donald H. Rumsfeld, lawyers today
asked a German prosecutor to investigate Mr. Rumsfeld on allegations
of war crimes, stemming from the treatment of prisoners held in
military jails in Iraq and at Guantanamo Bay, Cuba.
The 220-page lawsuit, filed with the German federal prosecutor in
Karlsruhe, names 11 other current and former American officials,
including Attorney General Alberto R. Gonzales, whom it alleges
either ordered the torture of prisoners or drafted laws that
legitimated its use.
The suit, filed by civil rights legal groups on behalf of 12
detainees -- 11 Iraqis and a Saudi -- alleges they were subjected to
beatings, sleep deprivation, withholding of food, and sexual
humiliation.
"Even if we never put Rumsfeld on trial in a German court, he will be
harassed and publicly stamped as a torturer," said Wolfgang Kaleck, a
Berlin attorney who filed the complaint, together with the Center for
Constitutional Rights, an American group, and other legal organizations.
Mr. Kaleck acknowledged that Germany would be reluctant to prosecute
top American officials. But he described a protracted legal
procedure, during which he suggests Mr. Rumsfeld might encounter
trouble traveling to Germany or other European Union countries.
Lawyers, he said, were also ready to file complaints in Spain,
Belgium, Argentina and other nations.
For Mr. Rumsfeld, who is soon to lose the legal protection of his
Cabinet post, the prospect of foreign lawsuits could be an irritant
when he travels overseas as a private citizen, according to legal
experts.
A spokeswoman for the Pentagon, Cynthia Smith, declined to comment on
the lawsuit because she had not seen it. The Pentagon denies
torturing detainees at the Abu Ghraib prison in Baghdad or at
Guantanamo.
The German prosecutor's office confirmed it had received the document
and said it would begin reviewing it.
This is the second time lawyers have asked German prosecutors to
investigate Mr. Rumsfeld. Prosecutors turned down a request in
February 2005, saying that German courts should not assert
jurisdiction in a case that would be better handled by prosecutors in
the United States.
The lawyers contend that almost two years later, the United States
has done little to investigate the role of senior Bush administration
officials in the treatment of prisoners who are suspected terrorists.
Moreover, they contend, the Military Commissions Act, passed by
Congress in September, will make it harder to prosecute American
officials at home for alleged violations of the Geneva Conventions.
The act provides retroactive immunity dating to the attacks of Sept.
11, 2001.
"We've had two years of complete inaction by the Bush
administration," said Kenneth Roth, the executive director of Human
Rights Watch, which is supporting the case. "They've been very good
at prosecuting lower-level officials, but done nothing to investigate
high-level officials."
The lawsuit is ambitious, naming not only Mr. Rumsfeld and Mr.
Gonzales, but also John C. Yoo and Jay S. Bybee, two former Justice
Department lawyers who helped draft the Bush administration's legal
arguments for treatment of suspected terrorists. It also names Lt.
Gen. Ricardo S. Sanchez, the military's former commander in Iraq.
Brig. Gen. Janis L. Karpinski, who commanded Abu Ghraib and was
punished for the abuses there, has offered to testify.
While the first lawsuit focused on Abu Ghraib, this one includes as a
plaintiff Mohammed al- Qahtani, a Saudi who is believed by many to
have participated in the planning of the Sept. 11 attacks. A lawyer
for Mr. al-Qahtani, who is being held in Guantanamo, alleges that his
client was subjected to abuse authorized by Mr. Rumsfeld.
The lawyers said they chose to file the suit in Germany for legal and
political reasons. German law has the principle of universal
jurisdiction, under which courts are entitled to prosecute people for
war crimes, regardless of where they live or where the crimes were
committed.
Germany, despite its opposition to the war in Iraq, also has a web of
connections to the United States military. Several military officials
implicated in the mistreatment at Abu Ghraib were stationed at
American bases in Germany; some returned to Germany after their tours
in Iraq.
American air bases in Germany are used for military flights to and
from Iraq. The German Parliament is investigating whether some of
those flights included transfers of suspected terrorists to secret
prisons -- the so-called rendition program run by the Central
Intelligence Agency.
The lawsuit comes at an awkward time for Chancellor Angela Merkel,
who has been trying to put German-American relations on a firmer
footing after the deep mistrust generated by the Iraq war.
Prosecuting high-level officials for war crimes in foreign countries
has a patchy record, according to legal experts. A Spanish judge was
unable to win the extradition of Gen. Augusto Pinochet, the Chilean
dictator, to face trial there for crimes against humanity. But
General Pinochet was held in London, and later returned to Chile.
Last month, the 90-year-old was put under house arrest in Santiago on
charges including kidnapping, torture and murder at a secret
detention center in the early years of his rule.
Henry Kissinger, the former secretary of state, has been sought for
questioning by courts in numerous countries about American
involvement with various Latin American dictatorships in the 1970's.
"If I were Rumsfeld's travel agent, I would advise him to choose some
other part of 'old Europe,' " said Detlev F. Vagts, emeritus
professor of international law at Harvard Law School. "There is some
danger out there."
The timing of today's lawsuit was not directly tied to Mr. Rumsfeld's
resignation, according to Mr. Kaleck. The lawyers waited until the
week after the elections in the United States to avoid being labeled
political. Still, they said, Mr. Rumsfeld's departure gives the
lawsuit an extra edge.
"Rumsfeld now seems to be less protected than he was before," said
Michael Ratner, the president of the Center for Constitutional
Rights, which is paying for part of the legal campaign.
Neil A. Lewis contributed reporting from Washington for this article.
Copyright 2006 The New York Times Company
http://oraclesyndicate.twoday.net/stories/2931264/
Center for Constitutional Rights
Background Brief on the case against Rumsfeld, Gonzales and others.
Filed in Germany on Tuesday, November 14, 2006
Executive Summary of the Complaint’s Allegations:
From Donald Rumsfeld on down, the political and military leaders in charge of ordering, allowing and implementing abusive interrogation techniques in the context of the “War on Terror” since September 11, 2001, must be investigated and held accountable. The complaint alleges that American military and civilian high-ranking officials named as defendants in the case have committed war crimes against detainees in Iraq, Afghanistan and in the U.S.-controlled Guantánamo Bay prison camp.
The complaint alleges that the defendants “ordered” war crimes, “aided or abetted” war crimes, or “failed, as civilian superiors or military commanders, to prevent their commission by subordinates, or to punish their subordinates,” actions that are explicitly criminalized by German law. The U.S. administration has treated hundreds if not thousands of detainees in a coercive manner, in accordance with “harsh interrogation techniques” ordered by Secretary Rumsfeld himself that legally constitute torture and/or cruel, inhuman and degrading treatment, in blatant violation of the provisions of the 1949 Geneva Conventions, the 1984 Convention Against Torture and the 1977 International Covenant on Civil and Political Rights -- to all of which the United States is a party. Under international humanitarian treaty and customary law, and as re-stated in German law, these acts of torture and cruel, inhuman or degrading treatment constitute war crimes.
The U.S. torture program that resulted in war crimes was aided and abetted by the government lawyers also named in this case: former Chief White House Counsel (and current Attorney General) Alberto R. Gonzales, former Assistant Attorney General Jay Bybee, former Deputy Assistant Attorney General John Yoo, and General Counsel of the Department of Defense William James Haynes, II. While some of them claim to merely have given legal opinions, those opinions were false, or clearly erroneous, and given in a context where it was known and foreseeable to these lawyers that torture would be the result. Not only was torture foreseeable, but this legal advice was given to facilitate and aid and abet torture as well as to attempt to immunize those who tortured. Without these opinions, the torture program could not have occurred. The infamous “Torture Memo” dated August 1, 2002, is the key document that redefined torture so narrowly that such classic and age old torture techniques as
wate
r-boarding were authorized to be employed and were employed by U.S. officials against detainees.
Why Germany?
The complaint is being filed under the Code of Crimes against International Law (CCIL), enacted by Germany in compliance with the Rome Statute creating the International Criminal Court in 2002, which Germany ratified. The CCIL provides for “universal jurisdiction” for war crimes, crimes of genocide and crimes against humanity. It enables the German Federal Prosecutor to investigate and prosecute crimes constituting a violation of the CCIL, irrespective of the location of the defendant or plaintiff, the place where the crime was carried out, or the nationality of the persons involved.
No international courts or personal tribunals in Iraq were mandated to conduct investigations and prosecutions of responsible U.S. officials. The United States has refused to join the International Criminal Court, thereby foreclosing the option of pursuing a prosecution in international courts. Iraq has no authority to prosecute. Furthermore, the U.S. gave immunity to all its personnel in Iraq from Iraqi prosecution. All this added to the United States’ unquestionable refusal to look at the responsibility of those of the very top of the chain of command and named in the present complaint, and the recent passage of the Military Commissions Act of 2006 (see below) aimed at preventing war crimes prosecutions against Americans in the U.S., German courts are seen as a last resort to obtain justice for those victims of abuse and torture while detained by the United States.
The Plaintiffs in the Case:
The complaint is being filed on behalf of 11 Iraqi citizens who were victims of gruesome crimes at the infamous Abu Ghraib prison. They were severely beaten, deprived of sleep and food, sexually abused, stripped naked and hooded, and exposed to extreme temperatures.
Another plaintiff in the case is Mohammed al Qahtani, a Saudi citizen detained at Guantánamo since January 2002. At Guantánamo, Mr. al Qahtani was subjected to a regime of aggressive interrogation techniques, known as the “First Special Interrogation Plan,” that were authorized by U.S. Secretary of Defense Donald Rumsfeld and implemented under the supervision and guidance of Secretary Rumsfeld and the commander of Guantánamo, defendant Major General Geoffrey Miller. These methods included fifty days of severe sleep deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, physical force, prolonged stress positions and prolonged sensory over-stimulation.
None of these plaintiffs -- and the hundreds of other detainees subjected to similar abuses -- has seen justice, and none of those who authorized these techniques at the top of the chain of command have been held liable for it, or even seriously and independently investigated.
The Defendants in the Case:
The U.S. high-ranking officials charged include:
-- Former Secretary of Defense Donald Rumsfeld
-- Former CIA Director George Tenet
-- Undersecretary of Defense for Intelligence Dr. Stephen Cambone
-- Lieutenant General Ricardo Sanchez
-- Major General Walter Wojdakowski
-- Major General Geoffrey Miller
-- Colonel Thomas Pappas
-- Former Chief White House Counsel Alberto R. Gonzales
-- Former Assistant Attorney General Jay Bybee
-- Former Deputy Assistant Attorney General John Yoo
-- General Counsel of the Department of Defense William James Haynes, II
-- Vice President Chief Counsel David S. Addington
The 2004 Complaint:
In November 2004, the previous German Federal Prosecutor failed to prosecute an earlier complaint against many of these same defendants filed by CCR with the support of FIDH and RAV. The U.S. pressured Germany to drop the case, saying not doing so would jeopardize U.S.-German relations, and the complaint was ultimately dismissed in February 2005 on the eve of a visit by Defense Secretary Donald Rumsfeld to Munich, Germany. In dismissing the case, the Prosecutor stated: “there are no indications that the authorities and courts of the United States of America are refraining, or would refrain, from penal measures as regards the violations described in the complaint.” The passage of the Military Commissions Act of 2006 immunizing officials and others from prosecution and much new evidence shows this is not the case.
The Impact of the Military Commissions Act of 2006:
The Military Commissions Act was signed by President Bush on October 17, 2006, and it protects U.S. officials and military personnel by:
1) narrowing the grounds of criminal liability under the War Crimes Act and making those revisions retroactive to November 26, 1997; and by
2) retroactively extending a defense for criminal prosecutions related to detentions and interrogations back to September 11, 2001.
These immunizing provisions essentially grant an amnesty for international crimes, including war crimes and torture. The retroactivity provision directs that prosecutions of war crimes committed since 1997 will fall under the new, narrowed range of standards and interpretations of war crimes, which would protect civilians from being prosecuted for committing acts that would have been considered war crimes under the old definition -- thereby explicitly aiming at immunizing American officials and others from prosecution in their country.
How the 2006 Complaint Is a Stronger Case:
The grounds for the 2005 dismissal are no longer justified:
The prosecutor’s original decision to dismiss the case was solely based on the assumption that an ongoing investigation was being carried out in the U.S. regarding the Abu Ghraib scandal. We now have extensive evidence that demonstrates that this investigation was directed only towards the criminal culpability of the lowest ranking military personnel. Indeed, some of these very defendants have been, or are being, rewarded with higher-level appointments and medals. The investigative and prosecutorial functions in the United States are currently directly controlled by the ones involved in the conspiracy to perpetrate war crimes and named in this complaint, which politically blocks possible investigations and criminal prosecutions. Furthermore, the enactment of the Military Commissions Act of 2006 is unquestionably the clearest illustration of such unwillingness to prosecute Americans for war crimes.
New evidence:
Extraordinary new materials, documentation and testimonies that have come to light over the past two years -- about what the plaintiffs went through (Mr. al Qahtani is a new plaintiff to the case), about the signed memos that led to the justification and practice of torture, and about the defendants’ personal involvement -- only strengthen the case.
In addition, former U.S. Brigadier General Janis Karpinski, a defendant in the earlier complaint as the commanding officer at Abu Ghraib, is now providing testimony and will testify on behalf of the plaintiffs.
New additional defendants:
The new complaint charges the government lawyers alleged to be the legal architects of the Bush Administration’s practice of torture.
Rumsfeld can no longer claim sovereign immunity:
Rumsfeld’s resignation on November 8, 2006, means that he cannot claim either the functional or personal immunity of sovereign officials from international prosecution for war crimes. Functional immunity -- related to acts performed in the exercise of a person’s official functions -- does not, since the Nuremberg trials in 1945, apply to international crimes such as war crimes. As to personal immunity -- covering officials’ private acts accomplished while in office -- it only applies during the individual’s term of office.
Unprecedented support for the case:
When filing a complaint to the Federal Prosecutor, any group may join the complaint as a “co-plaintiff,” which demonstrates the support of these groups and their common request for the opening of an investigation. Co-plaintiffs in the present case include:
Individuals
1980 Nobel Peace Prize winner Aldolfo Perez Esquirel (Argentine),
2002 Alternative Nobel Peace Prize winner Martín Almada (Paraguay),
Theo van Boven, the former United Nations Special Rapporteur on Torture,
Sister Dianna Ortiz, (Torture survivor, Executive Director of TASSC)
International and Regional NGOs
FIDH: International Federation for Human Rights
The International Peace Bureau (Nobel Peace Prize winner in 1910)
International Association of Lawyers Against Nuclear Arms (IALANA)
European Democratic Lawyers
European Democratic Jurists,
International Association of Democratic Lawyers
National NGOs
Argentina: Comité de Acción Jurídica (CAJ)
Argentina: Liga Argentina por los Derechos del Hombre
Bahrain: Bahrain Human Rights Society (BHRS)
Canada: Lawyers against the War (LAW)
Colombia: Colectivo de Abogados José Alvear Restrepo
Democratic Republic of Congo: Association Africaine des Droits de l’Homme (ASADHO)
Egypt: Egyptian Organization for Human Rights (EOHR)
France: Ligue Française des Droits de l'Homme (LDH)
Germany: The Republican Attorneys' Association (RAV)
Jordan: Amman Center for Human Rights Studies (ACHR)
Mexico: Comisión Mexicana de Defensa y Promoción de los Derechos Humanos (CMDPDH)
Mexico: Liga Mexicana por la Defensa de los Derechos Humanos (LIMEDDH)
Nicaragua: Centro Nicaraguense de Derechos Humanos (CENIDH)
Palestine: Palestinian Center for Human Rights
Tchad: Association Tchadienne pour la Promotion et la Défense des Droits de l’Homme (ATPDH)
Senegal: Rencontre Africaine pour la Défense des Droits de l’Homme (RADDHO)
USA: The Center for Constitutional Rights (CCR)
USA: National Lawyers’ Guild (NLG)
USA: Torture Abolition and Survivors Support Coalition International (TASSC)
USA: Veterans for Peace