It appears Secretary of Defense Donald Rumsfeld is about to be charged with war crimes in Germany. According to a Time Magazine report, several legal advocacy groups are going to file charges on Monday against Rumsfeld, CIA Director George Tenet, Attorney General Alberto Gonzales, and several generals. The charges are for war crimes on the basis that they had direct knowledge of or oversight of prisoner abuse at Abu Ghraib and Guantanamo.
The lawsuit is based on a similar suit from 2004, which was brought by the New York-based Center for Constitutional Rights and Germany's Republican Lawyers Association on behalf of five Iraqis allegedly mistreated by U.S. soldiers. The new suit has been expanded to include more plaintiffs, among them: Mohammed al-Qhatani, the "20th Hijacker" from the 9/11 attacks, and more far-left legal advocacy groups like the National Lawyers Guild and International Federation for Human Rights have signed on.
The suit will be filed under an unusual 2002 law, which claims German courts have universal extraterritorial jurisdiction in the case of war crimes and crimes against humanity. It also holds military commanders liable for actions committed by their subordinates. The original suit was dismissed by the German courts in 2005 and dismissed again on appeal, but the effort to bring charges was revived this week when Rumsfeld resigned, thereby losing some of the legal protections he had as a government official.
The reassertion of the suit is also motivated by a presumption that the U.S. justice system would not pursue charges, especially in light of the protections afforded officials under the new Military Commissions Act. Michael Ratner of the Center for Constitutional Rights commented: "The utter and complete failure of U.S. authorities to take any action to investigate high-level involvement in the torture program could not be clearer."
Secretary Rumsfeld is the primary target of the suit because he is alleged to have authorized specific interrogation techniques, including "the use of dogs, stripping, hooding, stressed positions, chaining to the floor, sexual humiliation and those types of activities," according to Ratner of the CCR.
Marjorie Cohn, President of the National Lawyers Guild observed:
Even though Rumsfeld didn't personally carry out the torture and mistreatment of prisoners, he authorized it. Under the doctrine of command responsibility, a commander can be liable for war crimes committed by his inferiors if he knew or should have known they would be committed and did nothing to stop or prevent them. The U.S. War Crimes Act provides for prosecution of a person who commits war crimes and prescribes life imprisonment, or even the death penalty if the victim dies.
The Pentagon has called the lawsuit "frivolous," "absurd," and "politicized." The news of the charges is just starting to circulate, but the suit is already being cited as the first step in an expected circus of witch hunt-style investigations and trials involving the Bush administration.
Whether the suit will be successful is debatable. It may never actually get to court, but it's great publicity and great copy for the news media.
The first major problem it faces is the fact there's no reason to expect the German government to follow through on a case which is substantially identical to one it dismissed in 2005 and then dismissed again on appeal, especially with a new administration which is harder on terrorism and more pro-American.
Another problem is the Germany's 2002 war crimes law's extraordinarily broad claims of jurisdiction are not recognized by the United States or even by international courts, so the inability to actually punish the subjects of the suit may get it dismissed as a waste of time and resources.
Because of these problems, the decision to go forward with the case would be inherently political and only makes sense if the German government has a desire to make a political point and a willingness to antagonize the United States. Actual prosecution of the case seems improbable, but it's still an excellent way for these activist groups to draw attention to their cause.