Foreign Trial For Prisoner Abuse? Blame it on Washington 's Own Actions
November 15, 2006
The knee-jerk reaction to human-rights lawyers asking a German prosecutor to launch a war-crimes investigation of Defense Secretary Donald Rumsfeld and other U.S. officials is that foreign courts should butt out of this nation's business.
It would be better if the possible culpability of Rumsfeld and other officials in the abuse, maybe torture, of 12 terror-war detainees at Guantanamo and Abu Ghraib prisons could be investigated in the United States . That's what lawyers from the Center for Constitutional Rights and a host of international nongovernmental organizations that petitioned the German prosecutor would prefer. And a similar petition was dismissed in Germany in 2005 because prosecution in the United States was still a possibility.
But the Military Commissions Act that President George W. Bush signed in October gave officials retroactive immunity for offenses they may have committed in connection with the interrogation of prisoners after 9/11. That left human-rights advocates little choice: Seek prosecution of Rumsfeld, Attorney General Alberto Gonzales, former CIA Director George Tenet and 11 others abroad, under the doctrine of universal jurisdiction, or not at all.
The idea behind universal jurisdiction is that some offenses are so heinous that they rise to the level of crimes against humanity, and become the duty of every civilized nation to prosecute if the opportunity arises. The doctrine was once used to bring pirates to justice, as justification for the Nuremberg trials of World War II war criminals, and to allow the prosecution in Britain of former Chilean dictator Augusto Pinochet.
Those seeking the German investigation say they hope that, if it bears fruit, it will be pre-empted by U.S. officials who, given a choice, might rather have such cases handled here at home. It's a sorry state of affairs when American officials could find themselves legally in the company of pirates, Nazis and dictators.