A Different Brand of Warfare
How cross-border legal moves are giving the White House lots to worry about
The Center for Constitutional Rights' current complaint is a repeat performance. In November 2004, CCR filed a similar complaint against Rumsfeld and the other defendants. But the U.S. threatened a range of sanctions against Germany, and the complaint was dismissed on the eve of a Rumsfeld trip to Munich. The German federal prosecutor said then that the U.S. investigation of the Abu Ghraib scandal displayed the Bush administration's willingness to address possible crimes there. New York City Bar Association lawyer Scott Horton, a leading international law expert, predicts that this time around, German prosecutors will conclude that the complaint against Rumsfeld and others is meritorious, "but for political reasons, they will not proceed with it."
The administration is counting on the fact that international law provides government officials some protections. "Courts have recognized that if senior officials are allowed to be arrested, subpoenaed, or sued while they are traveling on official business," says Bellinger, the State Department legal adviser, "this would cause unworkable interference with diplomacy." It's well settled, Bellinger adds, that sitting heads of state are immune to prosecution or suit while in office unless that immunity is waived by their government or overridden by the U.N. Security Council, and the principle may extend to other senior officials, such as attorneys general, although the law is less clear on that point. Even after President Bush or Secretary of State Condoleezza Rice leaves office, he or she should have "residual" immunity to prosecution, he says. However, Kissinger still faces some legal risk when he travels abroad. Bellinger predicts that there will be still more litigation over the immunity issue in years to come.
Officials at the Center for Constitutional Rights, meanwhile, vow to press ahead. "It's one thing when small countries in the world [conduct torture] and get yelled at," says Michael Ratner, CCR's president. "But when the U.S. does it, who's going to hold them accountable?" Even if the CCR suit goes nowhere, Ratner says, one of his goals is to ensure that Bush administration officials-and Rumsfeld, in particular-will never be able to travel abroad without huge legal hassles.
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