The Attempted Prosecution of Secretary Rumsfeld And Others In Germany
Four Iraqis allegedly abused at Abu Ghraib filed a criminal complaint in November 2004 with the German Federal Prosecutor’s Office in Karlsruhe, Germany, under the doctrine of “universal jurisdiction.”345 Officials named as defendants include Secretary Rumsfeld, current Attorney General and former White House Counsel Alberto Gonzales, Director Tenet, Undersecretary of Defense Stephen Cambone, Gen. Miller, Gen. Sanchez, Gen. Wojdakowski, Gen. Karpinski, Lt. Col. Jerry L. Phillabaum, Col. Pappas, and Lt. Col. Stephen L. Jordan. 346
The complainants were assisted by the Center for Constitutional Rights (CCR) which argued that Germany was “a court of last resort,” as it was “clear that the U.S. government is not willing to open an investigation into these allegations against these officials.”
The case apparently became hostage to political events, however, when the German prosecutor dismissed the complaint on the eve of a visit to Germany by Secretary Rumsfeld. When questioned about the case at a Pentagon press conference on February 3, 2005, Secretary Rumsfeld hinted that that he might refuse to attend the annual Munich Conference on Security Policy because of the lawsuit, stating, “[W]hether I end up there, we’ll soon know. It will be a week, and we’ll find out.”347
On February 10, 2005, a few days before the Munich conference, German prosecutor Kay Nehm dismissed the complaint on the ground that the United States, which has primary jurisdiction for prosecuting the alleged crimes, would investigate the matter. Nehm maintained that “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. Thus several proceedings have already been conducted against participants, even against members of the 800th Military Police Brigade.” The next day, Secretary Rumsfeld announced that he would attend the Munich conference.
The plaintiffs are currently filing a petition for re-consideration with the prosecutor’s office, before they file a formal appeal to a German superior court.
The German prosecutor’s decision flies in the face of the evidence, presented in this report, that the United States is not pursuing accountability for those most responsible for the pattern of crimes against detainees in U.S. custody.
Civil suits in the United States against Secretary Rumsfeld and others
On March 1, 2005, Iraqi and Afghan civilians who were allegedly tortured and abused while in U.S. custody, filed lawsuits in U.S. federal courts against Secretary Rumsfeld, Gen. Sanchez, Gen. Karpinski, and Col. Pappas, assisted by the ACLU and Human Rights First. The lawsuit against Secretary Rumsfeld alleges that he and the others ordered the torture and abuse of detainees in Iraq and Afghanistan and that he failed to stop the torture and cruel, inhuman, and degrading treatment even after credible reports of such treatment began to emerge in the media and in military documents. The victims seek a court order that their treatment was unlawful and violated international law, the U.S. Constitution, and U.S. military law. They also seek monetary compensation for the harms they suffered.348
The Need for a Special Prosecutor
This report has set forth the publicly-available evidence against two senior civilian leaders and two top military generals in connection with the widespread abuse of detainees in U.S. detention. Human Rights Watch expresses no opinion about the ultimate guilt or innocence of these men, particularly because so much evidence has been withheld and so many questions remain unanswered, but does believe that a criminal investigation is called for with respect to each of them. There may be other senior officials whose conduct also justifies an investigation.
Because there is no realistic possibility that the U.S. Attorney General or the U.S. military will investigate these senior leaders for the crimes described above, the appointment of a special prosecutor is warranted.
Under the Convention against Torture and the Geneva Conventions, the United States is required to prosecute acts of torture and war crimes.
Article 12 of the torture convention provides that:
Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.
An Independent Commission
In addition, Congress should create a special commission, along the lines of the National Commission on Terrorist Attacks upon the United States (also known as the 9-11 Commission),358 to investigate the issue of prisoner abuse, including all the issues described above. Such a commission would hold hearings, have full subpoena power, and be empowered to recommend the creation of a special prosecutor to investigate possible criminal offenses, if the Attorney General had not yet named one.
An independent commission could compel evidence that the government has continued to conceal, including directives reportedly signed by President Bush in late 2001 which have not been public and which are said to authorize the CIA to establish secret detention facilities and to transfer detainees to the custody of foreign nations,359 and the still-secret August 2002 Justice Department guidance to the CIA on permissible interrogation techniques which reportedly authorized the use of waterboarding.360
The commission could also examine Secretary Rumsfeld’s role in the chain of events leading to the worst period of abuses at Abu Ghraib. Unless a special counsel or an independent commission are named, and those who designed or authorized the illegal policies are held to account, all the protestations of “disgust” at the Abu Ghraib photos by President George W. Bush and others will be meaningless. If there is no real ccountability for these crimes, for years to come, the perpetrators of atrocities around the world will point to the U.S.’s treatment of prisoners to deflect criticism of their own conduct. Indeed,
when a government as dominant and influential as the United States openly defies laws against torture, it virtually invites others to do the same. Washington’s much-needed credibility as a proponent of human rights, damaged by the torture revelations, will be further damaged if the torture is followed by the substantial impunity that has prevailed until now.
In addition, Congress should create a special commission, along the lines of the National Commission on Terrorist Attacks upon the United States (also known as the 9-11 Commission),358 to investigate the issue of prisoner abuse, including all the issues described above. Such a commission would hold hearings, have full subpoena power, and be empowered to recommend the creation of a special prosecutor to investigate possible criminal offenses, if the Attorney General had not yet named one.
An independent commission could compel evidence that the government has continued to conceal, including directives reportedly signed by President Bush in late 2001 which have not been public and which are said to authorize the CIA to establish secret detention facilities and to transfer detainees to the custody of foreign nations,359 and the still-secret August 2002 Justice Department guidance to the CIA on permissible interrogation techniques which reportedly authorized the use of waterboarding.360
The commission could also examine Secretary Rumsfeld’s role in the chain of events leading to the worst period of abuses at Abu Ghraib.
Unless a special counsel or an independent commission are named, and those who designed or authorized the illegal policies are held to account, all the protestations of “disgust” at the Abu Ghraib photos by President George W. Bush and others will be meaningless. If there is no real accountability for these crimes, for years to come, the perpetrators of atrocities around the world will point to the U.S.’s treatment of prisoners to deflect criticism of their own conduct. Indeed, when a government as dominant and influential as the United States openly defies laws against torture, it virtually invites others to do the same. Washington’s much-needed credibility as a proponent of human rights, damaged by the torture revelations, will be further damaged if the torture is followed by the substantial impunity that has prevailed until now.
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346 See all the relevant documents at “Center for Constitutional Rights Seeks Criminal Investigation in Germany into
Culpability of U.S. Officials in Abu Ghraib Torture,” [online], http://www.ccrny.
org/v2/legal/september_11th/sept11Article.asp?ObjID=1xiADJOOQx&Content=472. The German Code of Crimes
against International Law in Article 1, Part 1, Section 1 states: "This Act shall apply to all criminal offenses against
international law designated under this Act, to serious criminal offences designated therein even when the offence was
committed abroad and bears no relation to Germany.” In addition, three of the defendants are present in Germany: Lt.
General Sanchez and Major General Wojdakowski are stationed in Heidelberg, and Colonel Pappas is in Wiesbaden.
347 DoD News Briefing, February 3, 2005 [online], http://www.defenselink.mil/transcripts/2005/tr20050203-
secdef2082.html. The exchange continued as follows: “Reporter: Are you concerned at all about the universal jurisdiction
that Germany has, and the fact that … Rumsfeld: It's certainly an issue, as it was in Belgium [where suits against U.S.
officials led Secretary Rumsfeld to threaten to move NATO headquarters]. It's something that we have to take into
consideration.”
348 The legal papers are collected at http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=17572&c=206.H
358 The National Commission on Terrorist Attacks Upon the United States (also known as the 9-11 Commission) was an
independent, bipartisan commission created by congressional legislation and the signature of President George W. Bush
in late 2002, to prepare an account of the circumstances surrounding the September 11, 2001 terrorist attacks, including
preparedness for and the immediate response to the attacks. Its report is available at http://www.9-11commission.gov/
359 Douglas Jehl and David Johnston, “Rule Change Lets C.I.A. Freely Send Suspects Abroad to Jails,” The New York
Times, March 6, 2005; John Barry, Michael Hirsh & Michael Isikoff, “The Roots of Torture,” Newsweek, May 24, 2004
[online], http://msnbc.msn.com/id/4989422/site/newsweek/.
360 See Toni Locy and John Diamond, “Memo Lists Acceptable ‘Aggressive’ Interrogation Methods: Justice Dept. Gave
Guidance to CIA,” USA Today, June 28, 2004; Dana Priest, “CIA Puts Harsh Tactics on Hold,” The Washington Post,
June 27, 2004.