November17, 2006: Lawfare has now gone international, with a lawsuit against American officials, filed in Germany, by the Center for Constitutional Rights. The suit, targeting Defense Secretary Donald Rumsfeld, Attorney General Alberto Gonzales, and former CIA Director George Tenet, is aimed at getting the German government to investigate alleged war crimes that have, to date, been shown to have little basis in reality. Germany was selected as a venue for this lawsuit due to the fact that it claims universal jurisdiction over war crimes. This means that any war crime committed by anyone anywhere on the globe can be tried in a German court. And anyone can bring a suit in a court in the Western world.

Torture claims have been ongoing. In 2005, there were questions raised about the treatment of the detainees. In July of that year, Senator Richard Durbin compared the treatment of the detainees to Nazi concentration camps. This was despite the fact that out of over 24,000 interrogations, incidents of abuse were rare (32 involving interrogations - 6 of which were corrected on the spot, with the rest dealt with through normal channels). Of the 10,000 troops at Guantanamo Bay, only ten were disciplined for not meeting standards - and in many of those cases, the disciplined soldiers had been provoked by the detainees (one case of alleged abuse came after a detainee had spat in the face of an interrogator).

One of the other bones of contention was the release of an interrogation diary involving a high-value detainee. The methods used during the detainee's interrogations were portrayed as routine. They were not - the techniques had been authorized as part of a special protocol. Naturally, human rights groups have been complaining about this, and their concerns are amplified by sympathetic news reports. Having lost in the legislative arena, they now have turned to foreign courts.

The lawsuit not only cites Guantanamo Bay, but it also cites Abu Ghraib. This "apples and oranges" approach shows how thin the case really is. Abu Ghraib was the actions of some rogue military policemen. At Guantanamo Bay, the special techniques were authorized and the proper authorities were informed. In the investigations of these matters, the results were clear: No torture occurred.

The other thing the German court was probably not told was just exactly what some of these detainees did. For instance, Mohamed Qahtami is a senior al-Qaeda operative who was slated to be the fifth hijacker on Flight 93 (this is the flight that crashed in Pennsylvania after a revolt by the passengers), but was denied entry in August, 2001. He was a trained terrorist sent to murder Americans (and others). Another detainee was believed to have gone to Pakistan with an Iraqi intelligence officer to launch a mortar attack on the American and British embassies in that country.

In essence, the lawfare attack in Germany really is little more than an effort to rehash old (and unfounded) allegations in a new forum. This time, the lawfare has gone international, and it has the potential to not only make life miserable for American officials who go abroad, but it will also complicate relations between the United States and Germany. - Harold C. Hutchison ([email protected])