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V. Non-Governmental Attempts at Accountability

Because the United States has failed to date to allow for an independent criminal investigation into the role and responsibility of high-ranking civilian and military officials for widespread crimes against detainees, victims and human rights activists have sought alternative routes to justice.

The attempted prosecution of Secretary Rumsfeld and others in Germany

Four Iraqis allegedly abused at Abu Ghraib filed a criminal complaint in November 2004 with the German Federal Prosecutor’s Office in Karlsruhe, Germany, under the doctrine of “universal jurisdiction.”³⁴⁵ Officials named as defendants include Secretary Rumsfeld, current Attorney General and former White House Counsel Alberto Gonzales, Director Tenet, Undersecretary of Defense Stephen Cambone, Gen. Miller, Gen. Sanchez, Gen. Wojdakowski, Gen. Karpinski, Lt. Col. Jerry L. Phillabaum, Col. Pappas, and Lt. Col. Stephen L. Jordan. ³⁴⁶

The complainants were assisted by the Center for Constitutional Rights (CCR) which argued that Germany was “a court of last resort,” as it was “clear that the U.S. government is not willing to open an investigation into these allegations against these officials.”

The case apparently became hostage to political events, however, when the German prosecutor dismissed the complaint on the eve of a visit to Germany by Secretary Rumsfeld. When questioned about the case at a Pentagon press conference on February 3, 2005, Secretary Rumsfeld hinted that that he might refuse to attend the annual Munich Conference on Security Policy because of the lawsuit, stating, “[W]hether I end up there, we’ll soon know. It will be a week, and we’ll find out.”³⁴⁷

On February 10, 2005, a few days before the Munich conference, German prosecutor Kay Nehm dismissed the complaint on the ground that the United States, which has primary jurisdiction for prosecuting the alleged crimes, would investigate the matter. Nehm maintained that “there are no indications that the authorities and courts of the United States of America are refraining, or would refrain, from penal measures as regards the violations described in the complaint.Thus several proceedings have already been conducted against participants, even against members of the 800^th Military Police Brigade.” The next day, Secretary Rumsfeld announced that he would attend the Munich conference.

The plaintiffs are currently filing a petition for re-consideration with the prosecutor’s office, before they file a formal appeal to a German superior court.

The German prosecutor’s decision flies in the face of the evidence, presented in this report, that the United States is not pursuing accountability for those most responsible for the pattern of crimes against detainees in U.S. custody.

Civil suits in the United States against Secretary Rumsfeld and others

On March 1, 2005, Iraqi and Afghan civilians who were allegedly tortured and abused while in U.S. custody, filed lawsuits in U.S. federal courts against Secretary Rumsfeld, Gen. Sanchez, Gen. Karpinski, and Col. Pappas, assisted by the ACLU and Human Rights First. The lawsuit against Secretary Rumsfeld alleges that he and the others ordered the torture and abuse of detainees in Iraq and Afghanistan and that he failed to stop the torture and cruel, inhuman, and degrading treatment even after credible reports of such treatment began to emerge in the media and in military documents. The victims seek a court order that their treatment was unlawful and violated international law, the U.S. Constitution, and U.S. military law. They also seek monetary compensation for the harms they suffered.³⁴⁸