Nov. 17 (Bloomberg) -- As he packs up his office in the Pentagon, Donald Rumsfeld can look forward to more free time. Before he rings up his travel agent to book any overseas trips, he would do well to consult an attorney.
This week, human rights advocates from around the world filed a criminal complaint in Germany accusing Rumsfeld, U.S. Attorney General Alberto Gonzales, former CIA Director George Tenet and nine other Americans of war crimes for the torture and abuse of prisoners in U.S. custody.
They are suing on behalf of 11 Iraqis who had been imprisoned at Abu Ghraib, and a Saudi held at Guantanamo Bay in Cuba. All say they were subjected to a range of torture, humiliation and abuse.
``There has to be some accountability for Donald Rumsfeld,'' says Michael Ratner, president of the New York-based Center for Constitutional Rights, one of the groups urging prosecution. ``You can't have high-ranking U.S. officials doing this kind of stuff or the world is chaos, complete chaos,'' he said in a telephone interview from Berlin.
The mere complaint compels Germany's chief federal prosecutor, Monika Harms, to at least consider opening an investigation and, if she decides against prosecuting, to give a solid, legal reason for saying no.
And while she is deciding how far to take it, Harms has the power to secretly get an arrest warrant just in case any of the accused drops in.
If Germany issues an arrest warrant, dozens of other countries with whom it has formal or informal extradition agreements could nab them, too.
Is it likely a longtime ally would arrest a former U.S. defense secretary? Nah. Is it possible under the law? Absolutely.
Of that, Rumsfeld is well aware. Less than two years ago, he told reporters he might miss an important NATO security meeting in Munich in part because a similar complaint was pending before German authorities.
It is ``something we have to take into consideration,'' Rumsfeld said on Feb. 3, 2005, explaining why he hadn't yet decided to go.
On Feb. 10, German prosecutors officially declined to pursue the matter. Two days later, Rumsfeld was in Munich giving a speech.
That time, the prosecutor announced there would be no prosecution in Germany because the U.S. was conducting its own investigations.
But in the two years hence, investigations have wound down and only lower-ranking personnel have been prosecuted, though there is mounting evidence, even admissions, of involvement at higher levels.
You may wonder what gives Germany the right to prosecute non-Germans for conduct toward other non-Germans that occurred beyond German borders.
It is called universal jurisdiction, a concept with growing popularity for prosecuting crimes against humanity, such as torture and genocide. Human rights violators ranging from nuns to generals have been convicted in lands far from their crimes.
``The idea is that there are some crimes that are so offensive to mankind that any state ought to be allowed to prosecute them,'' Ratner says.
Often, the countries where the crimes occurred aren't independent enough from the perpetrators to prosecute them.
Sued in U.S. Courts
In this case, it's not as if human rights advocates have been sitting on their hands.
They have sued in U.S. courts on behalf of Guantanamo detainees and won in the U.S. Supreme Court, only to watch as the administration did everything it could to put off abiding by the rulings. Finally, in September, the administration persuaded Congress to deny detainees access to U.S. courts and to immunize U.S. personnel from prosecution for violating international anti- torture laws.
In the meantime, President George W. Bush has rewarded those now accused. He gave a Medal of Freedom to Tenant, who oversaw the rendition of certain detainees to secret locations for special interrogations. As for administration lawyers who advised Bush on how to get around anti-torture laws, he promoted then- White House Counsel Gonzales to attorney general and nominated two more lawyers to federal judgeships.
There are ways to get around the German law, too. Belgium had one similar to Germany's until it found itself with a complaint accusing then-President George H.W. Bush of war crimes from the 1991 Gulf War. The U.S. threatened to have NATO headquarters moved out of Brussels unless the law was changed, and it was.
As for this complaint, ``The German government would certainly like these kinds of things to go away because they're an irritant to bilateral relations,'' says Steven Ratner, an international criminal law expert at Michigan University law school and no relation to Michael Ratner.
``On the other hand, there has been no investigation of anybody of high command,'' the professor adds. ``That might convince a prosecutor that it's worth an investigation.''
The Defense Department says there have been plenty of investigations, and none have pointed to wrongdoing by those up the chain of command.
The human rights advocates who brought the case in Germany mostly just want somebody, somewhere to take seriously the idea that those in command had some responsibility for the torture and abuse that have blighted the name of the country that used to be a leader in human rights.
If U.S. authorities mounted such an investigation, ``the German case would be dropped in two seconds,'' says Michael Ratner.
And isn't accountability what last week's U.S. elections were all about?