GERMAN PROSECUTOR DROPS LEGAL COMPLAINT AGAINST

UNCLAS SECTION 01 OF 02 BERLIN 000865 SIPDIS SIPDIS E.O. 12958: N/A TAGS: KJUS KLIG PTER GM SUBJECT: GERMAN PROSECUTOR DROPS LEGAL COMPLAINT AGAINST SENIOR USG OFFICIALS REF: A. 06 BERLIN 3296 ¶B. 06 BERLIN 3424 AND PREVIOUS ¶1. (U) Summary. German Federal Prosecutor decided April 27 not to pursue a full investigation into senior U.S. officials for alleged "war crimes" at Abu Ghraib and Guantanamo. As first reported in ref A, the New York-based Center for Constitutional Rights, acting through German attorney Wolfgang Kaleck, filed a legal complaint November 14, 2006 against former Defense Secretary Rumsfeld, Attorney General Gonzales, former DCI Tenet, and other senior U.S. civilian and military officials. The Prosecutor, according to his press release, based his decision on legal provisions that grant the Prosecutor discretion to decide not to investigate those with no connection to Germany. In addition, the Prosecutor said it would be virtually impossible to conduct a thorough investigation and said Germany did not want to encourage "forum shopping" by complainants bringing criminal charges wherever local law allows. End Summary. ¶2. (U) According to the Prosecutor's press release, the legal basis for not continuing the investigation is Section 153(f) of the Federal Criminal Procedure Code. Section 153(f) provides the Prosecutor with discretion to refrain from an investigation and to limit cases under the universal jurisdiction of the German Code of Crimes against International Law (CCAIL). According to Section 153 (f)(I)(1) the Prosecutor may refrain from investigating an alleged crime under the CCAIL if the alleged crime was committed outside of Germany and if the suspect neither resides in nor is expected to reside in Germany in the future. The Prosecutor stated in his press release that no crime was committed in Germany. None of the named individuals resided in Germany or were expected to reside in Germany in the future, the Prosecutor wrote. The mere theoretical possibility of an entry of persons into Germany did not indicate that an individual "expected to reside in Germany in the future," according to the Prosecutor. ¶3. (U) The Prosecutor continued there was no way for German law enforcement authorities to investigate the case. While on one hand international crimes should be investigated worldwide, the Prosecutor wrote, complainants should not engage in "forum shopping" by picking states, namely Germany, that have no connection whatsoever to the alleged crime, simply because its laws permit the filing of such complaints. The Prosecutor wrote that German authorities should not need to conduct time-consuming but fruitless investigations. Furthermore, for the complaint to continue, German authorities would have to conduct investigations in the countries where the alleged crimes took place. Since Germany has no executive power in these countries, the Prosecutor wrote, German authorities would be obliged to use legal assistance channels. The Prosecutor continued that the legal and security situation in Iraq meant that such efforts would be futile. Therefore German authorities would not be able fully to investigate, leaving the prospect of only a symbolic effort. The Prosecutor wrote that the CCAIL did not intend to engender mere symbolic investigations. In conclusion, the Prosecutor wrote that the investigation of any alleged violations of law in Guantanamo or in connection with the Iraq war falls within U.S. responsibility. - - - - - NEXT STEPS - - - - - ¶4. (U) The Prosecutor referred to a previous legal complaint filed in 2004 against senior U.S. officials, also alleging misconduct in connection with Abu Ghraib. In that instance, the Prosecutor also decided against an investigation, a decision which the complainant appealed in an effort to force the Prosecutor to conduct an investigation. In the press release, the Prosecutor referred to this previous court decision and wrote that his efforts focused on new information the complainant provided that was not in the previous complaint. By referring to the previous decision and his willingness to consider new information, the Prosecutor acknowledged the complainant's ability again to try to sue the Prosecutor to overturn today's decision not to investigate the alleged crimes. BERLIN 00000865 002 OF 002 ¶5. (U) Embassy is seeking the full text of the decision and will forward its analysis septel. KOENIG