Last week, I reported how the ACLU is using unaccountable global governance bodies to find the United States in violation of a whole host of what they called “universal” human rights. As outrageous as this is, the ultra-Left Center for Constitutional Rights (CCR) is planning something far more sinister.
On November 14, 2006, the CCR plans to file a criminal complaint in a German court on behalf of detainees at the Abu Ghraib prison in Iraq and at Guantanamo Bay, Cuba, against former Secretary of Defense Donald Rumsfeld, Attorney General Alberto Gonzales, former Director of Central Intelligence George Tenet, and other high-ranking current and former U.S. government officials. The complaint requests the German Federal Prosecutor to open an investigation and, ultimately, a criminal prosecution that will look into the responsibility of high-ranking U.S. officials for authorizing alleged war crimes in the context of what CCR refers to as “the so-called ‘War on Terror.’”
The Center for Constitutional Rights is filing this complaint under the Code of Crimes Against International Law enacted by Germany in compliance with the Rome Statute creating the International Criminal Court in 2002, which Germany ratified. The German law provides for “universal jurisdiction” in the German courts for war crimes, crimes against humanity, and genocide irrespective of the location and nationality of the plaintiffs and defendants or the location of the alleged crime. The United States has not ratified the Rome Statute and therefore is not a party subject to the jurisdiction of the International Criminal Court. To get around this inconvenient fact, the Center for Constitutional Rights is petitioning a non-U.S. court under a non-U.S. law to convict Rumsfeld and other top U.S. government officials on the spurious grounds that they allegedly “ordered”, “aided or abetted,” or “failed to prevent commission by subordinates” of certain alleged “war crimes.” The complaint focuses on alleged “harsh interrogation techniques” used in time of war against enemy combatants that purportedly constitute “war crimes” under “international humanitarian treaty and customary law” as “restated in German law.”
This is not the first time that the CCR has tried to take this route. Its 2004, complaint filed under the same German law was dismissed. However, now CCR claims that it is justified to file again because of new evidence, new parties, and new circumstances that include Rumsfeld’s resignation as Secretary of Defense and the passage of the Military Commissions Act of 2006 in the U.S., which CCR says gives government officials broad retroactive immunity against prosecution for alleged war crimes.
The Palestinian Center for Human Rights and an assortment of leftist human rights organizations are listed as co-plaintiffs in this case. Perhaps the Palestinians are just showing their gratitude to the Center for Constitutional Rights for joining it back in December 2005 in a class action lawsuit against Avi Dichter, the former Director of Israel’s General Security Service, on behalf of Palestinians who were allegedly killed or injured in a 2002 air strike in Gaza.
German courts have no legally valid jurisdiction over U.S. government officials where no German citizens are involved, the alleged war crimes occurred outside of Germany and the U.S is not a party to the International Criminal Court treaty. The ever-litigious American lawyers who call themselves the Center for Constitutional Rights are in fact subverting the Constitution that they claim to be protecting – and have from the day they founded this organization.
First, they cite the decision of the U.S. not to become a party to the Rome Statute establishing the International Criminal Court as a basis for the German court to intervene. Under Articles I and II of the U.S. Constitution, the president submits and the Senate ratifies any treaties to which the U.S. is to be subject. In this case, the president of the United States and the U.S. Senate exercised their Constitutional prerogative in refusing to become a party to the treaty establishing the International Criminal Court. The German court has no business effectively second guessing that decision by acting as if it were stepping into the shoes of the International Criminal Court under Germany’s own “universal jurisdiction” domestic law. By asking the German court to do so, the Center for Constitutional Rights is enlisting the aid of a foreign government to repudiate the decision of our duly elected officials pursuant to their Constitutional authority.
Second, CCR mischaracterizes the Military Commissions Act in its argument that it strips away any legal accountability of high-level U.S. government officials before the U.S. courts. That is simply false. In fact, the Military Commissions Act provides for accountability while also providing legal protections that ensure our military, intelligence and civilian government personnel will not have to fear frivolous lawsuits filed by organizations like CCR on behalf of suspected terrorists. The Act accomplishes this objective by defining with particularity the conduct constituting torture and cruel or inhuman treatment that is punishable. It sets forth a series of specifically defined criminal offenses, which include torture, inhumane treatment, rape, medical experimentation, taking of hostages, and kidnapping. Anyone found to have committed such offenses can be prosecuted. Due process of law under the Constitution’s Fifth Amendment requires reasonably defined legal standards of conduct for determining guilt or innocence. Spelling out the specific, recognizable offenses that would be considered crimes in the handling of detainees meets due process requirements. Vague phrases in the Geneva Conventions like “degrading” treatment do not meet such requirements, and are therefore not in themselves subject to jurisprudence. Moreover, the Military Commissions Act does not provide sweeping retroactive immunity from any prosecution as the Center for Constitutional Rights falsely suggests. With clarity for the first time in defining precisely what constitutes a criminal offense in this area, the Act does provide for protection against ex post facto laws consistent with Article I, Section 9 of the Constitution. However, the Center for Constitutional Rights could not care less about the Constitutional rights of those it accuses of committing “war crimes.” So it reaches out to the German court to decide guilt or innocence under Germany’s law.
Third, without even exhausting all judicial remedies in this country first, CCR is effectively challenging the Constitutional authority of the federal courts established pursuant to Article III of the Constitution by taking its complaint to a German court instead on false pretenses. Our federal courts have sole jurisdiction to hear CCR’s complaint against U.S. government officials’ actions in the course of performing their official duties during wars being prosecuted by the commander-in-chief under Congressional authorization. The Constitution does not recognize the extra-judicial authority of a foreign court to hear this type of complaint in these circumstances. Moreover, CCR is misrepresenting the legal situation here. The Supreme Court and lower federal courts have already recognized certain rights for aggrieved alien detainees and may well end up hearing a challenge to the constitutionality of the Military Commissions Act that CCR has joined other attorneys in bringing before the U.S. Court of Appeals for the D.C. Circuit. But the Center’s litigators refuse to wait for the judgment of the U.S. courts as they are obliged to do if they truly believe in preserving our Constitutional system of government. In addition to bringing their specific war crimes complaint to the German court now, the Center for Constitutional Rights had submitted on November 1, 2006, another complaint (along with the International Federation for Human Rights) to six international law ‘experts’ of the Human Rights Council in Geneva. That complaint challenged the compatibility of the United States’ Military Commissions Act of 2006 with the purported “obligations” of the U.S. to “respect international human rights law.” No doubt they are looking to jump the gun with some broad pronouncement on international human rights ‘norms’ by an unaccountable group of self-styled international experts to try to ram down the Supreme Court Justices’ throats at the appropriate time.
Fourth, there will most certainly be aggressive Congressional investigations of the Administration’s actions in the Democratic Party-controlled House and Senate next year. This is exactly the kind of checks and balances that the Founding Fathers had in mind, although one hopes against hope that the investigations will be carried out responsibly. The point is that the people have spoken. Rumsfeld is out and the opposition party will now be in full control of the legislative branch with full subpoena powers. As has happened in the past, evidence of wrongdoing gathered during the Congressional oversight investigations can be used in future criminal trials in this country against the wrongdoers. But again the Center for Constitutional Rights’ eager beaver lawyers are simply too impatient to wait for our own Constitutional system to play out.
As if this were not enough, CCR’s claims appear to lack any substance. They allege as “war crimes” such high pressure interrogation techniques as severe sleep deprivation and 20-hour-long interrogations, prolonged stress positions, prolonged sensory over-stimulation and what they call “religious” and “sexual” humiliation. Maybe CCR’s own lawyers stayed up too late at night themselves listening to loud rock music like the Red Hot Chili Peppers as they tried to spice up their complaint with such examples of alleged “war crimes.”
The Center for Constitutional Rights is making a mockery of the cause they serve. Yes, some abuses of detainees have occurred on our watch, but they are the exception and not the rule. We self-examine and try to correct what goes wrong in our system. In serving up propaganda and highly partisan rhetoric in the guise of an inflammatory lawsuit in a foreign court that lacks the proper authority to hear the case, as well as in lobbying for the appointment of a Special Prosecutor to examine alleged acts of “torture,” the Center seems to be engaging in activities which should disqualify it from continuing to be treated as a tax exempt nonprofit charitable and educational organization under section 501(c)(3) of the Internal Revenue Code. There is nothing charitable, educational, or noble about an organization dedicated to bashing America, providing solace to suspected terrorists, and placing millions of Americans at risk from more 9/11 style attacks or worse by doing everything they can to impede effective offensive actions against the Islamic-fascist terrorists.