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The Nature of the Complaint

The War Crimes Case Against Rumsfeld

by MICHAEL RATNER

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.