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Cablegate: German Prosecutor Drops Legal Complaint Against

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DE RUEHRL #0865/01 1171815
ZNR UUUUU ZZH
O 271815Z APR 07
FM AMEMBASSY BERLIN
TO RUEHC/SECSTATE WASHDC IMMEDIATE 8115
RUEAWJA/DEPT OF JUSTICE WASHDC IMMEDIATE
INFO RHMFISS/CDRUSAREUR HEIDELBERG GE PRIORITY
RHMFIUU/COMSOCEUR VAIHINGEN GE PRIORITY
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RHMFIUU/HQ USCENTCOM MACDILL AFB FL PRIORITY
RUEKJCS/HQ USEUCOM LO WASHINGTON DC PRIORITY
RHMFISS/HQ USEUCOM VAIHINGEN GE PRIORITY
RUKAAKA/USAREUR ACE DARMSTADT GE PRIORITY
RUCNFRG/FRG COLLECTIVE
RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUEHGB/AMEMBASSY BAGHDAD 0193

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.

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NEXT STEPS
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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

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