Maybe the trial should be in Nuremberg

Posted Friday, Nov. 10, 2006
"Just days after his resignation, Defense Secretary Donald Rumsfeld is about to face more repercussions for his involvement in the troubled wars in Iraq and Afghanistan. New legal documents, to be filed next week with Germany's top prosecutor, will seek a criminal investigation and prosecution of Rumsfeld, along with Attorney General Alberto Gonzales, former CIA director George Tenet and other senior U.S. civilian and military officers, for their alleged roles in abuses committed at Iraq's Abu Ghraib prison and at the U.S. detention facility at Guantanamo Bay, Cuba." Time Magazine

To say the least, there is considerable irony in the idea of German prosecution of American war crimes. The prospect of German legal proceedings against Rumsfeld, Gonzales, Carbone and others first surfaced two years ago and caused a diplomatic dust-up because of its effect on Rumsfeld's plan to attend a conference in Munich. Rumsfeld, now operating ex officio, is not faced with that difficulty anymore, although it's unlikely he's planning any idyllic sojourns in the Bavarian Alps at present. That case was terminated by the Germans on the theory the USA would deal with its own war criminals in its own way, under the complex network of American federal statutes which deal with torture and violations of the Geneva Conventions (the War Crimes Act). No doubt this rather fanciful notion served diplomatic purposes of the moment, and could not have been reflective of actual German sentiment.

Under Germany's Code of Crimes Against International Law, which was introduced in 2002, German courts have universal jurisdiction in war crimes and crimes against humanity. As another instance of irony, the U.S. largely led the way in establishing international precedent for the prosecution of war crimes following World War II, and presumably the Germans, once hoist on this petard themselves, would draw on the principles as the textual basis for a prosecution of alleged American war crimes. The USA, as noted, carries the same general principles on its own books as part of the War Crimes Act, the federal Anti-Torture Statute and the recently enacted Detainee Treatment Act (McCain bill) applying the anti-torture statute to all detainees in U.S. custody, whether or not designated "enemy combatants," an extension solidified by the decision in Hamdan vs. Rumsfeld, in which the Supreme Court clarified the applicability of the Geneva Conventions to human beings in general, despite the strenuous efforts of Bush's Torture Brigade to create a special class of Untermenschen upon whom any atrocity or depraved act could be practiced with impunity, rather like another polity between 1933 and 1945.

The Supreme Court, having brought Bush up short with its Hamdan decision, motivated The Decider to decide to seek a get-out-of-jail free card in his Military Commissions Act. You may recall from an earlier Swim in the Pond that Bush was vociferous in his need, expressed in September, 2006, to get on with immediate trials at Guantanamo for his high value detainees being shipped there even as he spoke. Without risking too much sarcasm, one might note that (a) no trials are currently underway, as the Bush Administration fights mightily to deprive the inmates of counsel on the basis of Kafkaesque arguments also previously detailed, and (2) the real deadline Bush was up against was November 8, 2006, election day, when his pet Congress might turn a little unruly. The sole purpose of the MCA can be stated in the following, innocent-looking citations (the first is from the Military Commissions Act):

"(b) PROTECTION OF PERSONNEL.—Section 1004 of the Detainee
Treatment Act of 2005 (42 U.S.C. 2000dd–1) shall apply with respect
to any criminal prosecution that—
(1) relates to the detention and interrogation of aliens
described in such section;
(2) is grounded in section 2441(c)(3) of title 18, United
States Code; and
(3) relates to actions occurring between September 11,
2001, and December 30, 2005.

(The cited section from the Detainee Treatment Act reads in full as follows:)

SEC. 1004. PROTECTION OF UNITED STATES GOVERNMENT PERSONNEL ENGAGED IN AUTHORIZED INTERROGATIONS.

(a) Protection of United States Government Personnel- In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities. (Italics added.)"

Neat, huh? Without actually ever mentioning the words "exculpation" or "exoneration" in the Military Commissions Act, Bush completes his task of artful dodging by incorporating another no-worries the Republicans gladly handed him. And the italicized language is simply priceless. Bush will rely on the advice of the High Inquisitioner himself, Alberto Gonzalez, aided and abetted by John Yoo (another potential German defendant, and a person who sullies the proud traditions of UC Berkeley), as part of his airtight defense against prosecution for War Crimes under American law. Alberto, in that memo I asked him to put together to justify torture of "enemy combatants," told me it was okay to torture enemy combatants. So how could I have been doing anything wrong? Our noble President: craven, sneaky, dishonest, irresponsible to the very last. What a role model!

Under these circumstances, the Germans, who now have the assistance of the U.S. legal team representing Guantanamo prisoners (Michael Ratner and the Lawyers for Constitutional Rights), and Janet Karpinski, the military fall-woman for the abuses of Abu Ghraib, can perhaps be excused from their earlier decision to exercise, as they say, judicial restraint. Not only does the United States have no intention of ever prosecuting anyone for war crimes, at least under present arrangements; the Congress is actively engaged in making sure the whole thing is covered up.

It's simply shameful. Why, the Germans and the rest of the civilized world may ask, should the United States actively shield war criminals from the consequences of their actions? The German High Command, at least, could argue they were being charged with crimes that were not on anyone's books. Rumsfeld and his ilk violated statutes and the clear provisions of the Geneva Conventions in existence long before they took that road to the "dark side." And no, Mr. Bush - Common Article 3 is not "vague"--it is intentionally general, because it forbids indecent acts, and any decent person understands that what went on at Abu Ghraib, what has gone on in Afghanistan and Guantanamo, what has happened in all those secret CIA dungeons, degrades and debases the United States of America and the legal principles on which it was founded.