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On November 14, the Center
for Constitutional Rights (CCR), the International Federation
for Human Rights, Germany's Republican Attorneys' Association,
and other groups and individuals filed a formal complaint with
the German Federal Prosecutor to open an investigation and, ultimately,
a criminal prosecution of former Defense Secretary Donald Rumsfeld
and other major U.S. officials. The complaint argues that Rumsfeld
and other high-ranking civilian and military officials named
as defendants in the case have committed war crimes, and in particular
torture, against prisoners in Iraq, Afghanistan, and Guantánamo
Bay. Following is an interview by the staff of Revolution
with Michael Ratner, president of the CCR, who was among those
in Germany on November 14 to file the complaint.
Question: Let's begin with the nature of this
complaint and what it's designed to accomplish. Rumsfeld is a
major focus, but the lawsuit seems to go well beyond him in its
scope and intentions.
Michael Ratner: Well, European countries have a way
of going after people in criminal cases that we're not familiar
with in the U.S. They have a procedure where human rights groups
and others, as well as the victims themselves, can go and ask
a prosecutor to investigate someone for criminal liability. In
the U.S., of course, you can knock on a prosecutor's door but
then he shuts it in your face and it's all over. In Germany and
other European countries, if the prosecutor shuts the door in
your face you can go to court and the prosecutor must have a
valid reason for not investigating. So that's a big difference.
Germany also has a law, like some other European countries are
beginning to have, that says certain crimes are subject to prosecution
no matter where in the world they're committed, and even if there's
no connection between that particular country and the alleged
crime. And certain crimes are considered so serious and so heinous
that every country is considered to have an interest in prosecuting
them. One of those crimes involves violation of the Geneva Conventions.
And these countries have universal jurisdiction, which means
they can prosecute the person no matter where he or she committed
the war crimes. Germany has very good law on that, and that's
why we decided to go there to try to get an investigation of
the key U.S. government officials who were involved in setting
up and implementing what I call the torture program in the U.S.
post-9/11.
Normally, you would stay in
the U.S. to do that if you could, but of course there's now a
complete block here. Attorney General Alberto Gonzales is on
one side as the person who would have to prosecute people criminally,
but he's deeply involved himself in the torture program. And
on the other side there's Rumsfeld, who has resigned but is still
in office at this time and is also deeply involved in the torture
program. And Congress has done nothing, with neither Republicans
nor Democrats issuing a complaint about this. There's also Bush,
who's insisting he wants to continue to have the right to use
torture. And my view, and the view of the others who have filed
this complaint, is that you must have accountability on the part
of those in this country who have supported torture. We still
have a torture program in place and we have to do something about
it.
Question: Who, exactly, are the plaintiffs and
defendants in this case?
Michael Ratner: We decided to go after people high
up in the chain of command, led by Donald Rumsfeld. In regard
to Rumsfeld himself, we're alleging that he committed war crimes
by approving various interrogation techniques. That's what he
and the others call them, interrogation techniques, but they're
really torture techniques--everything from stress positions,
stripping, sexual humiliation, dogs, hypothermia, sleep deprivation,
etc. And we have Rumsfeld approving, essentially, using these
techniques, in his own handwriting. Rumsfeld has been involved,
clearly, with Guantánamo and Iraq, as well as Baghram
prison in Afghanistan.
And among the other named defendants
we also have General Ricardo Sanchez, who was in charge of the
Iraq war at the outset and authorized these torture techniques.
There's also George Tenet, who was head of the CIA, and that
of course involves the CIA's secret detention sites around the
world, where waterboarding and other kinds of torture went on.
Those are three of the people at the top who we've named as defendants.
Then we have the lawyers, former Assistant Attorney General Jay
Bybee and former Deputy Assistant Attorney General John Yoo in
particular, who basically set up the legal framework. There was
a case during the Nuremburg trials in Germany after World War
2 in which German lawyers were gone after because they implemented
the Nazi program of murder. People like Bybee and Yoo argue they're
just lawyers giving their legal opinions, but when you look at
the context that's not what happened. What happened is that some
people resisted using torture, both in the CIA and the military.
They said we're not going to do this because we might get prosecuted,
and therefore we want legal protection, so write us something
that allows us to do this. So that's where the lawyers like Bybee
and Yoo come in.
Those are the main defendants,
plus a few others further down the chain who were in Iraq and
responsible for carrying out the orders, like Colonel Thomas
Pappas. And we have a couple of people from Rumsfeld's office,
like Stephen Cambone, the Undersecretary of Defense for Intelligence,
and a couple of Cheney people. There are 12 defendants in all.
As plaintiffs, we have 11 Iraqi prisoners and one from Guantánamo.
The Iraqis were in Abu Ghraib and other Iraqi prisons, and they
tell devastating stories. For example, there was an insurgency
in one village and the U.S. troops came in and targeted this
particular guy's house and bombed it and went in and killed his
80-year-old father and tortured him for a week and then let him
go and basically said they had the wrong guy. They never said
they were sorry, just that they had the wrong guy.
With the Guantánamo
prisoner, we have the most direct link to Rumsfeld, although
all of the plaintiffs and what happened to them represent pretty
direct links to him. But for the Guantánamo prisoner,
Mohammed al-Qahtani, we have an interrogation log which, while
it reads with a certain banality, describes a two-month period
of 48 days in which he endured sleep deprivation, was chained
to a chair, had intravenous water retention so that he was forced
to urinate on himself, and was stripped and had a female straddle
him and abuse him sexually. And there were things done to him
that are probably even much worse that we don't yet know about
for sure. For example, a fake rendition, we think, where he was
put on a plane and flown around and taken back to Guantánamo,
but he didn't know that and thought he was in some other country,
like Egypt, where he would be tortured even further. And with
this Al-Qahtani interrogation, we actually have Rumsfeld essentially
approving and/or supervising it in some way. And that came out
not from our papers, but from the government's own report, saying
that Rumsfeld was involved in that interrogation. So Rumsfeld
had very, very direct links with these people in the torture
program. People in Germany, when we filed our complaint on November
14, and including the press, were no longer even disputing that
the U.S. has been involved in war crimes, including torture.
The plaintiffs also include
various human rights groups, and other organizations like the
CCR (Center for Constitutional Rights), as well as a couple of
Nobel Prize winners. And the other important factor is that we
had Janis Karpinski as a witness on November 14. [Karpinski was
commander of all U.S. military prisons in Iraq at the point that
the torture of prisoners at Abu Ghraib was revealed.] The first
time we brought the case, in 2004, we had Janis as a defendant.
But this time, she actually came to Germany and spoke about the
need for people to go up the chain of command, and she said she
actually saw a set of interrogation procedures taped up in Abu
Ghraib, and Rumsfeld had signed off on this.
She said she had her responsibility
at Abu Ghraib taken out from under her at that time and no longer
had any jurisdiction there, but that she did see these interrogation
techniques posted that had unquestionably been authorized by
Rumsfeld. And while she was the highest-level person demoted
for what happened at Abu Ghraib, it's clear it didn't stop with
her. It went all the way up. It's not that we're guessing about
what these highest-level guys did--much of it is in writing,
all this stuff.
So that's the context in which
we decided to bring this case in Germany, feeling that we were
totally blocked from doing it in the U.S., from a legal point
of view. Among other things, there's no International Criminal
Court jurisdiction in this country--the U.S. government won't
recognize such jurisdiction--so you have to go to Germany and
you really push hard on a prosecutor to begin an investigation.
Question: In regard to being blocked from filing
suit in the U.S. and having to go to Germany instead, the recent
passage of the pro-torture, anti-habeas corpus Military Commissions
Act (MCA) also seems to be a critical factor.
Michael Ratner: Right, that was key. The MCA, signed
on October 17, does many different things. But one of them is
to redefine war crimes, and it redefines those in a way that
gives amnesty or a pardon to all of these people who committed
war crimes post-9/11, through these coercive, inhumane torture
interrogation techniques. What happened is that in early 2002,
Attorney General Gonzales and others wrote memos saying, look,
if we interrogate these people very roughly we could be subject
to war crimes prosecution and we don't want to risk that. So,
since war crimes are defined in the U.S. as violations of the
Geneva Conventions, the best way we can avoid prosecution is
to say that the conventions don't apply to al-Qaeda or the Taliban.
From that point on, they went merrily along. But then, all of
a sudden, in June 2006 the Supreme Court's Hamden decision comes
down, which says that Common Article 3 of the Geneva Conventions,
in particular its humanitarian provisions, applies to everybody
who is detained. So now you're sitting there, not only Rumsfeld
or Gonzales but also the people who actually implemented the
torture, and you say, well, we may be prosecuted in the future
after all, because now Geneva does apply and we've been violating
it for five years.
But then the Bush administration
runs to Congress and asks them to redefine the war crimes statute
so that it no longer includes violations of Common Article 3--and
not only going forward, so that they can continue to torture
people, but going backward to 9/11. So what they've done, really,
is what every abusive dictatorship has always done--they've given
themselves amnesty. And that's illegal, of course--you can't
be given amnesty for war crimes. Who knows, maybe the amnesty
they gave themselves will be upheld in the U.S. courts, but in
Europe it not only will not be upheld, it actually puts pressure
on the German prosecutor to take this case seriously. Because
the last time we filed this kind of war crimes complaint, in
2004, it was dismissed on the grounds that the U.S. still had
an open investigation going on, and it was still possible for
that investigation to move up the chain of command. But now that's
over, because the U.S. government has basically said we're giving
amnesty to our war criminals. This, of course, is obvious evidence
of guilt, and no matter what happens in Germany--because, among
other things, there are political issues involved and we can't
be sure what will happen there--I think we're at the beginning
of a legal process of getting fully at these war crimes, in Europe
in particular. And if necessary, we can go to a country like
Spain after Germany
Question: You're saying that a major reason
why the German prosecutor dismissed the complaint filed in 2004
was because there were political issues involved? If so, it certainly
wouldn't be a surprise.
Michael Ratner: Right. Like Rumsfeld saying he wouldn't
go to a Munich security conference as long as the complaint was
pending. But what's interesting is that, now, they don't have
that excuse anymore. In addition, one of our goals now, with
this new complaint we just filed, is to get more street opposition
going in Germany, so that we can continue to pressure the German
prosecutor to do something.
Question: It sounds like the case this time
is even stronger than in 2004, given what has been revealed in
the last two years.
Michael Ratner: Definitely. And the reception this
time around really shocked me, compared to 2004. We had, for
example, one phone call that involved 40 press representatives.
And they were asking serious questions about the legal procedures
and what would happen if Rumsfeld tries to travel, etc. Yeah,
a few people over there were dismissive, saying we were simply
grandstanding and all that sort of thing. My answer to them is,
okay, from a legal point of view and obviously from a protest
point of view, if you can come up with something better please
let me know. I mean, people should not be sitting still now.
Debate shouldn't be around what I'm doing with this complaint,
but what you are NOT doing. And that to me is the absolutely
crucial point here. You have to try everything right now--from
a lawyer's point of view, all of these kinds of things like the
November 14 filing. But, of course, I know from being a political
lawyer that it also takes a certain big push from a much wider
force.
Question: That brings me to my next question,
which is how do you see this complaint that CCR and others just
filed in Germany in relation to other efforts that are going
on, like the Bush Crimes Commission?
Michael Ratner: Right, the Bush Crimes Commission
is quite important and is similar to what we're doing in Germany,
and that's why I'm quite supportive of the commission's work.
Because the legal pathways in this country are now closed, and
will remain closed, without people's activity, without people
making demands. It's critical that at a minimum, we create a
record at this time of what this administration has done, the
horrible war crimes it has committed. And the Bush Crimes Commission,
the lawsuit we've filed in Germany, these things help to move
the people's agenda forward. I mean, two years ago, even just
one year ago, most people in the U.S. didn't think of Rumsfeld
as a war criminal. But now I think many do think of him as a
war criminal, based in large part on the work of the Bush Commission
and the kind of case we're pursuing in Germany. It's not like
we have state power right now, so this is what people can do,
and it's crucial.
Question: And this also ties in with the kind
of massive resistance that is needed.
Michael Ratner: I agree. You need massive resistance
to this government and its crimes. There's no question about
that.
This interview was conducted
by the staff of Revolution.
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