Anyone home at the State Department?
Dec 4, 2006, Vol. 12, No. 12 • By JEREMY RABKIN
IT IS HARDLY CONCEIVABLE that Donald Rumsfeld will end up serving a prison sentence in some modern counterpart of Spandau Prison, where the Nuremberg defendants served out their terms.
But a German prosecutor is now considering whether to go after Rumsfeld and more than a dozen other high-ranking American officials for alleged war crimes at Abu Ghraib and Guantánamo. Almost certainly German officials will flinch before getting to formal trials. But the issue for now is in German hands.
The Germans can claim that this prosecution was not their idea. The initiative came from the New York-based Center for Constitutional Rights (CCR), which filed a 200-page complaint in mid-November on behalf of 11 Iraqis who claim to have been abused at Abu Ghraib and a Saudi national with similar claims about his treatment at Guantánamo. It's the sort of thing CCR does--an obvious add-on for its domestic litigation against antiterror measures, its appeals for Lynne Stewart (convicted message-carrier for convicted terrorist mastermind Omar Abdel Rahman), and its recent efforts to mobilize demands for the impeachment of President Bush.
CCR filed a similar complaint in November 2004 on behalf of the same complainants. That was dismissed by German prosecutors less than three months later, on the grounds that the United States was already pursuing its own investigations into these abuses. The premise for this earlier German decision is now untenable, says CCR: The U.S. government has continued to shield top officials from accountability, and the Military Commissions Act of 2006 now blocks any effective recourse to U.S. courts.
Janis Karpinski, the demoted former commander at Abu Ghraib who was a target of the original CCR call for prosecution, has now announced that she wants to testify for the prosecution of higher-ups who, she says, are the real culprits. Professors of international law from the United States and elsewhere offer statements of support. International law, they say, not only authorizes but also obligates foreign governments to step forward when perpetrators of international crimes are not called to account by their own government.
If you comb through international treaties and precedents from international tribunals, you might well find plausible grounds for the German prosecutors to act (as under the prohibition on "humiliating and degrading treatment" in the Geneva conventions). The charges are only "frivolous"--as a Pentagon spokesman called them--if you look up from lawyerly parsing of treaty provisions and tribunal precedents and think seriously about real world implications. That is not the way officials in the civilian courts of Europe are trained to think.
So the Germans are in a somewhat awkward spot. And the Bush administration has acted as if it sympathizes with Germany's difficulty here. Or at least, the administration has acted as if it doesn't want to be seen putting overt pressure on the German legal process.
We haven't always acted with such restraint. When Belgian prosecutors announced in 2002 that they were looking into charges against Vice President Cheney--for alleged abuses in the conduct of the 1991 Gulf war, when Cheney was in charge at the Defense Department--American officials warned that we might have to urge the relocation of NATO headquarters, away from Belgium to some country where U.S. officials wouldn't be threatened with subpoenas at every meeting. The Belgians promptly rescinded their universal jurisdiction law.
Even in the earlier round in CCR's case, Rumsfeld announced that, if the prosecution remained open, he could not attend a Munich conference where he'd been expected to speak at the beginning of 2005. Prosecutors then announced the dismissal of the case, in time for Rumsfeld to show up in Munich without a protective entourage of legal advisers. This time, however, the Bush administration has said nothing in public about changes in travel plans, let alone about plans to close remaining U.S. military facilities in Germany, if prosecutors don't reconsider.
But the Germans do not deserve patient forbearance. On the contrary, this episode should be a warning to Washington. If the United States treats this situation as no more than an inadvertent moment of legal confusion, it is asking for more and more challenges down the road. And a lot of Germans really want to supply them.
Start with the law, itself. The CCR sought to have this prosecution launched in Germany because German law is especially open to this sort of legal claim. That is not inadvertent. Germany was, among major states, perhaps the single most enthusiastic advocate for establishing an International Criminal Court in the 1990s. The Germans eagerly pushed forward with the project in disregard of American concerns and objections.