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For months, Ratner and his colleagues at the left-wing law group Center for Constitutional Rights had been working with French lawyers, preparing a prosecutorial brief against the former secretary of defense. They waited until October, when Rumsfeld was scheduled to be in Paris for a round-table discussion on international relations sponsored by Foreign Policy magazine. On the day Rumsfeld arrived, the lawyers walked into a Parisian court and formally charged him with ordering torture at Guantánamo Bay, a violation of the 1984 Convention Against Torture. When the round-table was finished, Ratner and his colleagues later noted in a press release, Rumsfeld ducked out of the building and "left through a door connecting to the U.S. embassy to avoid journalists and human rights attorneys outside."
Ratner had already filed a criminal complaint in Germany a year earlier, and he plans to hit Rumsfeld with yet another one in a Spanish court this February. The odds of Rumsfeld being convicted of anything are slimbut that's not really the point. If a criminal investigation is under way, Rumsfeld could be dragged into court to answer questions as long as he stays in France or Germany or Spain. The only way to avoid this embarrassment is to stay out of those countries indefinitely.
In October, Ratner convened a conference of European lawyers and prosecutors in Germany, where they brainstormed new ways to sue or prosecute American intelligence agents. At the conference, Italian lawyer Armandos Spataro discussed his case against 20 CIA officials who allegedly kidnapped a terror suspect in Milan in 2003. All 20 officials have been reportedly flown back to the United States to avoid prosecutionincluding the CIA station chief, who was forced to abandon the posh villa he bought with his life savings. "There's a reason why American officials are afraid of prosecution," Ratner says. "There's a reason why so many memos tried to rationalize [torture]. There's a reason why Mukasey wouldn't say waterboarding is torture. Because there's a lot of CIA guys who aren't sleeping well. And we're persistent. We're not going to stop."
This strategy is not without some pretty sensational precedents. In 2001, Henry Kissinger was forced to flee Paris after receiving a summons to appear before a judge investigating the death of French citizens during Pinochet's reign in Chile. His critics now gloat that Kissinger can never travel to Europe without first consulting his attorneys.
But Ratner's plans have hit a few snags recently. Both the German and French courts have thrown out his criminal complaints, though Ratner's European colleagues are appealing the decisions. Indeed, when the German complaint was filed last year, New Yorker legal writer Jeffrey Toobin called it "a totally ridiculous lawsuit."
According to Andy McCarthy, a former federal prosecutor and senior fellow at the right-wing think tank Foundation for the Defense of Democracies, Ratner can't really win these cases, so he's resorted to venue-shopping and shoving paper at Rumsfeld merely to annoy him. "It's a harassment tactic, and it's the kind of thing that, as a lawyer, it's ethically improper to do," McCarthy says. "If you have a good-faith lawsuit, you file the lawsuit. The law is not supposed to be about addling people so you inconvenience them and drain their financial resources. That's not supposed to be the point."
Conservative blowhard David Horowitz goes even further: "Michael Ratner has been a committed enemy of the United States for his entire life," he says. "Everything he's done has been to sabotage America's battles for freedom in the world. He supported the communists, and now he's supporting the terrorists!"
But Ratner has grown used to such criticism by now. When the federal government began rounding up terror suspects after September 11, his Center for Constitutional Rights took the lead in suing to guarantee that the suspects had access to the federal courts. The center's lawyers have sued the federal government over the extraordinary rendition of Canadian citizen Maher Arar, and the Blackwater security company over the September 17 shooting that left 17 Iraqis dead in Baghdad.
And when Ratner files his next case in Spain, Horowitz's blood pressure should go up even more. Among Ratner's numerous clients at Guantánamo Bay are several Spanish citizens who claim they were tortured by American officials. It's one thing to nudge European courts to enforce abstract international treaty obligations, Ratner says; it's another when your clients are actual flesh-and-blood citizens of those nations. "When you have citizens of the country that were tortured," Ratner says, "you have a much better case."