The Guardian 22 November, 2006

The case against
Rumsfeld, Gonzales & others

The November 14, 2006, criminal complaint is a request for the German Federal Prosecutor to open an investigation and, ultimately, a criminal prosecution that will look into the responsibility of high-ranking US officials for authorising war crimes in the context of the so-called "War on Terror".

The complaint is brought on behalf of 12 torture victims — 11 Iraqi citizens who were held at Abu Ghraib prison and one Guantánamo detainee — and is being filed by the Center for Constitutional Rights (CCR), the International Federation for Human Rights (FIDH), the Republican Attorneys’ Association (RAV) and others, all represented by Berlin Attorney Wolfgang Kaleck.

The complaint is related to a 2004 complaint that was dismissed, but the new complaint is filed with much new evidence, new defendants and plaintiffs, a new German Federal Prosecutor and, most important, under new circumstances that include the resignation of Donald Rumsfeld as Secretary of Defense and the passage of the Military Commissions Act of 2006 in the US granting officials retro­active immunity from prosecution for war crimes.

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 US-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 criminalised by German law.

The US 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 US 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 immunise 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 water-boarding were authorised to be employed and were employed by US 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 US 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 US 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 US. 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 authorised by US 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 50 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 authorised 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 impact of the Military Commissions Act of 2006

    The Military Commissions Act was signed by President Bush on October 17, 2006, and it protects US 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 defence for criminal prosecutions related to detentions and interrogations back to September 11, 2001.

    These immunising 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 immunising 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 US 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 US 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.

    Centre for Constitutional Rights

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