Newly-confirmed US Atttorney General Alberto Gonzales may begin his term as an indicted war criminal. The New York-based Center for Constitutional Rights filed new documents January 31 with the German Federal Prosecutor looking into war crimes charges against high-ranking US officials, including Donald Rumsfeld. One includes new evidence that the Fay report on Abu Ghraib protected Administration officials--a comprehensive and shocking opinion by Scott Horton, an expert on international law and chair of the International Law Committee of the New York City Bar Association. The second is a letter detailing how Attorney General nominee Alberto Gonzales’ testimony before the Senate Judiciary Committee confirms his role as complicit in the torture and abuse of detainees in Abu Ghraib and elsewhere in Iraq.

In a declaration filed with the prosecutor in Karlsruhe, Germany, Scott Horton, who was asked to consider whether the US could conduct a genuine investigation up the chain of command for war crimes, unequivocally states that “…no such criminal investigation or prosecution would occur in the near future in the United States for the reason that the criminal investigative and prosecutorial functions are currently controlled by individuals who are involved in the conspiracy to commit war crimes." The impossibility of an independent and far-reaching domestic investigation of high-ranking US officials coupled with the United States’ refusal to join the International Criminal Court make the German court a court of last resort.

Horton also reveals that a study he undertook of Maj. Gen. George R. Fay’s investigation of the Abu Ghraib abuses (The Fay Report, spring 2004) shows that the investigation was in fact designed to cover up the role of high-ranking officials. He writes that “certain senior officials whose conduct in this affair bears close scrutiny, were explicitly ‘protected’ or ‘shielded’ by withholding information from investigators or by providing security classifications that made such investigation possible… [I]n each case, the fact that these individuals possessed information on Rumsfeld’s involvement was essential to the decision to shield them."

Horton noted that the Justice Department had failed to act on obvious war crimes, despite appeals by the American Bar Association and leaders of the legal profession in the US. With the confirmation of Alberto Gonzales looming, he stated that “any serious criminal investigation and prosecution would certainly involve Gonzales."

According to recent news reports, Rumsfeld has threatened to stay away from the annual Munich security conference because of possible prosecution in Germany. Commenting on this development, CCR president Michael Ratner said, “While we think this is nothing more than a tactic to bully the Germans into dropping the case, we also believe that Donald Rumsfeld cannot escape accountability for his alleged crimes."

Under the doctrine of universal jurisdiction, which is part of German law, suspected war criminals may be prosecuted irrespective of where they are located. At least three of the defendants, Lt. Gen. Ricardo Sanchez, Maj. Gen. Walter Wojdakowski and Col. Thomas Pappas, are stationed in Germany. Plaintiffs in this case, represented by German attorney Wolfgang Kaleck, include three Iraqi citizens who were abused at US-run detention facilities in Iraq including Abu Ghraib. Also joining the complaint are: the Federation Internationale des Droits de l’Homme (FIDH), Lawyers Against the War (LAW) and the International Legal Resources Center (ILRC).

To read more about the case, click here.

See also WW4 REPORT #105

In related news, US District Court Judge Joyce Green ruled Jan. 31 that special military tribunals used by the Pentagon to determine the guilt and continued detention of nearly 550 men held at Guantanamo Bay are illegal. CCR, which filed a number of the habeas corpus petitions before Judge Green, called the decision a major victory for the detainees and for civil liberties. CCR, which also won the Supreme Court case Rasul v. Bush last year, has since condemned the Bush administration for failing to comply with the decision and give the Guantanamo detainees a chance to challenge their detention in federal court.

CCR president Michael Ratner said: “Judge Green’s decision is extraordinary. It reaffirms that the Guantanamo detainees cannot be imprisoned outside the law, that they have a constitutional right to a fair hearing and that evidence resulting from torture and coercion cannot be used to continue their imprisonments. The judge also found that it was illegal for the President to unilaterally determine that an entire group of the Guantánamo prisoners were not POW’s protected by the Geneva conventions. This ruling has the potential to bring the US back into the fold of nations under law. It is about time.�?