NGO FILES ANOTHER LEGAL COMPLAINT AGAINST SENIOR

C O N F I D E N T I A L BERLIN 003296

SIPDIS

SIPDIS

DEPT FOR EUR/AGS AND L/LEI (KPROPP)
DOJ FOR THE OFFICE OF THE ATTORNEY GENERAL (BSWARTZ)

E.O. 12958: DECL: 11/14/2016
TAGS: KJUS KMDR PREL GM
SUBJECT: NGO FILES ANOTHER LEGAL COMPLAINT AGAINST SENIOR
U.S. OFFICIALS

REF: 05 BERLIN 2311 AND PREVIOUS

Classified By: Deputy Chief of Mission John M. Koenig for Reasons 1.4 (
b) and (d)


1. (C) Summary. The Justice Ministry confirmed that a German
lawyer for the Center for Constitutional Rights (CCR),a New
York-based NGO, filed a 380 page legal complaint via email
November 14 with the German Federal Prosecutor General in
Karlsruhe. The complaint requests the Federal Prosecutor
indict Defense Secretary Rumsfeld, Attorney General Gonzales,
former DCI Tenet, and other senior U.S. officials for alleged
"war crimes" at Abu Ghraib and Guantanamo. The action by the
CCR, the International Federation for Human Rights (FIDH) and
the Republican Attorney's Association is, according to the
CCR release, being brought on behalf of 11 Iraqis reportedly
mistreated in Abu Ghraib prison and a Saudi detained in
Guantanamo. The Ministry of Justice official said the
length of the document, plus the additional materials a
German attorney filed in support of the complaint, mean that
it will take the Prosecutor General's office considerable
time to review it and that the Prosecutor is not likely to be
able to comment publicly on it for at least four weeks. As
reported in reftels, CCR has previously filed complaints with
the German Federal Prosecutor, who dismissed all of them.
Emboffs have spoken with Chancellery and Foreign Ministry
officials as well to alert them to the issue and to express
our concerns. End Summary.

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PROSECUTOR TO REVIEW CCR COMPLAINT
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2. (C) Edgar Radziwill, Ministry of Justice Office Director
for Law Relating to Crimes against the State, Law of
Immunity, and Military Commission Law, confirmed to Emboff
November 14 that the Federal Prosecutor in Karlsruhe received
a 380-page legal complaint from CCR via email through CCR's
German attorney Wolfgang Kaleck. Radziwill said CCR informed
the Federal Prosecutor that CCR was sending via regular mail
a printed version of the legal complaint along with
additional supporting documents. Radziwill added Kaleck had
been involved in CCR's previous efforts to seek indictments
of senior U.S. military and government officials. Radziwill
said the Federal Prosecutor would have no public reaction to
the CCR filing for at least four weeks. He stated that
numerous factors account for the length of time the Federal
Prosecutor will require, including the number of pages CCR
submitted, the wait before the arrival of the supporting
documents, and the fact that some of the documents are in
English and will need to be translated. Commenting on the
issues CCR raises in its documents, Radziwill said the
allegations over possible actions in Abu Ghraib were not new
and that the Federal Prosecutor had already thoroughly
reviewed them in connection with the previous (and failed)
initial motions. Radziwill indicated it appeared CCR also had
made allegations regarding Guantanamo, but it was unclear
whether they were new.

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CCR CLAIMS NEW INFORMATION, NEW CIRCUMSTANCES IN NEW COMPLAINT
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3. (SBU) According to the CCR's website, they will argue
several new developments merit the German Federal
Prosecutor's reconsideration of their request for an
indictment, notwithstanding the Federal Prosecutor's previous
rejection of CCR petitions (rejections which German courts
subsequently agreed were appropriate use of the Prosecutors'
discretion whether or not to proceed with an investigation
and indictment). The CCR claims the Military Commissions Act
of 2006 grants immunity to U.S. officials, thereby
undercutting the German Federal Prosecutor's previous
statement that the U.S. justice system was conducting
investigations. The CCR also claims they have new
defendants, new evidence -- including the testimony of former
U.S. Brigadier General Janis Karpinski -- and that Secretary
Rumsfeld's resignation announcement lifts his sovereign

immunity.


4. (U) The CCR lists the following as "defendants in the case"

- Donald Rumsfeld, Secretary of Defense
- George Tenet, Former CIA Director
- Dr. Stephen Cambone, Undersecretary of Defense for
Intelligence
- Lieutenant General Ricardo Sanchez
- Major General Walter Wojdakowski
- Major General Geoffrey Miller
- Colonel Thomas Pappas
- Alberto R. Gonzales, Attorney General and Former Chief
White House Counsel
- General Jay Bybee, Former Assistant Attorney
- John Yoo, Former Deputy Assistant Attorney General
- William James Haynes, II, General Counsel of the Department
of Defense
- David S. Addington, Vice President Chief Counsel


5. (C) The DCM spoke with the Chancellery's North America
Director, Geza von Geyr, to express concern over the
proceedings. EMIN also contacted the MFA's North America
Director to express concern. The MFA Director said he had
already been in contact with the MFA's legal department and
that they were aware of the issue. The initial MFA sense was
that, while "anyone can file," the U.S. has full rule of law
and an advanced legal system. The public prosecutor, he
continued, would likely find the group could file a complaint
and receive justice in the U.S and there is no need to file
in Germany. His informal sense was that the NGO, which has
connections to the U.S., was "court-shopping" in coming to
Germany. We noted, however, that while there was a body of
precedent, that did not guarantee that the judiciary would
proceed the same way this time and so we continued to see
reasons for concern.

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BACKGROUND
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6. (SBU) The German Federal Code of Crimes against
International Criminal Law (CCAIL),enacted on June 30, 2002
is the German domestic legislation implementing the Rome
Statute establishing the International Criminal Court. The
CCAIL codifies genocide, crimes against humanity, and war
crimes in domestic German criminal law. It also permits
prosecutions in Germany for these crimes regardless of the
nationality of the accused and/or the place of the alleged
crime. German courts have invoked -- rarely -- the concept
of universality for crimes such as genocide, trafficking in
persons, drug trafficking, and forgery. The CCAIL expands
the category of offenses with no connection to Germany that
may be prosecuted in Germany. The Federal Prosecutor leads
investigations and decides whether or not to indict in cases
of alleged crimes under the CCAIL. Individuals or groups can
send legal complaints to the Federal Prosecutor to seek an
indictment. These complaints can trigger a preliminary
investigation. The "legality principle" requires the Federal
Prosecutor to conduct an objective investigation to fully
develop facts and evidence and to determine if sufficient
evidence exists to indict. The Federal Prosecutor has some
discretion in making a decision:

- The CCAIL allows the Prosecutor to decline to prosecute a
non-German national for an offense if the crime was committed
in a foreign country and if the accused is not residing, nor
expected to reside, in Germany. This measure is designed to
limit the broad universal jurisdiction of the CCAIL.

- The Federal Prosecutor can use discretion not to indict in
cases that affect German "national interests."

- The Federal Prosecutor, even if initially agreeing to
pursue the complaint, may decide to drop the complaint for
lack of evidence.

- The Federal Prosecutor may decide not to indict if the

accused is currently being tried by an international court,
by the state in which the offense was committed, or by the
state of citizenship of the accused, or if the transfer of
the case to an international court or extradition to the
prosecuting state is permissible and is intended.


7. (SBU) The Federal Prosecutor formally is part of the
executive branch and under the general oversight of the
Federal Justice Minister. In reality, the Minister does not
direct the activities of the Federal Prosecutor and the
German public regards the Prosecutor as independent. Also,
even if the Federal Prosecutor chooses not to indict,
complainants can challenge the Federal Prosecutor's decision
in court.


8. (SBU) Individuals and groups in past years have filed
numerous complaints under the CCAIL with the Federal
Prosecutor seeking the indictment of prominent U.S. and
German officials, including President Bush and former
Chancellor Schroeder and members of their cabinets. Recent
complaints against U.S. officials centered around the war in
Iraq; complainants also alleged German officials "aided and
abetted" U.S. actions. The Federal Prosecutor has dismissed
all these complaints. Complainants have gone to court to
force the Federal Prosecutor to open an indictment, but in
all cases German courts have upheld the Federal Prosecutor's
decision not to indict.


9. (SBU) Mission will remain focused on the proceedings and
report any developments. The Ambassador is scheduled to meet
Justice Minister Zypries November 17 and the DCM will meet
Justice Ministry State Secretary Diwell November 22. We
intend to raise the legal complaint and ask how the German
Government will handle the situation.
TIMKEN JR