It did not take long. On January 20, the very day of the swearing-in of Barack Obama as the new president of the United States, Germany’s ZDF public television broadcast a report in which UN “torture rapporteur” Manfred Nowak called for the new American administration to prosecute outgoing President Bush and former Secretary of Defense Donald Rumsfeld on torture charges. As touched upon in my recent PJM article “Dubious UN ‘Expert’ Misrepresents Guantánamo — Again,” Nowak has made a name for himself in recent years by militating for the closure of the Guantánamo Bay detention center. He first came to broad public attention in 2006, when, in a highly publicized UN report, he accused the U.S. of practicing torture at Guantánamo.
His most recent comments were included as part of a segment on the ZDF news magazine Frontal21. The entire segment treats as established fact that it was U.S. government policy to use torture under the Bush administration. Thus in the intro, Frontal21 host Theo Koll declares, “Under [Obama’s] predecessor America tortured detainees, even if for George Bush these were to the very end only ‘harsh interrogation methods.'” The narration that follows speaks of “the Bush administration’s legacy of torture and lawlessness in the fight against terror.” It is hardly surprising, then, that Nowak (as paraphrased by Koll) should conclude that “Obama is legally obligated to undertake criminal proceedings against Bush and Co.” Since it is treated as given throughout that America tortured and that the torture was a systematic practice approved — or, as the narrator puts it, “legalized” — by the Bush administration, this is in fact a foregone conclusion.
Besides Nowak, the other “experts” whose opinions are canvassed by Frontal21 are the German lawyer Wolfgang Kaleck and a representative of the New York-based Center for Constitutional Rights (CCR). In 2006, Kaleck’s Berlin-based Union of Republican Lawyers (RAV) and the CCR jointly filed a “war crimes” complaint against Donald Rumsfeld in Germany. (On the German complaint, see my contemporaneous report here.)
The ZDF report repeatedly suggests, moreover, that waterboarding was one of the “harsh” interrogation methods approved by the Pentagon. For added dramatic effect, video images are shown of an apparent Gitmo detainee in an orange jumpsuit writhing as he undergoes the treatment. In fact, however, a request by Army interrogators to use waterboarding was expressly refused by Secretary of Defense Donald Rumsfeld. (See the relevant memorandum here.) The source of the “writhing detainee” footage is given as Current TV. It is nowhere indicated that the “writhing detainee” is in fact Current TV reporter Kaj Larsen and that the scene comes from a would-be “reenactment.”
Nowak is trotted out by the ZDF producers as their star witness in the case against Bush and Rumsfeld. “The proofs are plain for all to see [liegen auf dem Tisch],” he is quoted as saying in a ZDF press release. “One should not mince words [herumreden]. It was torture.” “We have all these documents, which nowadays are even publicly accessible,” he explains in the segment, “[and which show] that these methods were expressly ordered by Rumsfeld. But, of course, the highest offices in the United States of America also knew.” In case part of its audience might fail to get the allusion, ZDF helpfully intersperses a brief interview with a political scientist that makes explicit that this means President Bush. Referring to the UN Convention Against Torture, Nowak notes that states that are party to the convention (as is the U.S.) “are obligated to do everything to see to it that persons who have been accused of torture are also brought before the courts and criminally charged.” “In the last analysis, it is, of course, a political question whether these persons will really be held accountable,” he adds. “But from the legal point of view, the United States has a clear obligation.”
Ironically, the publicly accessible documents and alleged “proof” to which Nowak refers consist of the very exchange of memoranda on interrogation techniques that culminated with Donald Rumsfeld’s refusal to authorize waterboarding. Rumsfeld likewise refused to authorize even the mere threat of physical violence. Other, obviously less severe, techniques were approved and were applied, notably, in the extended interrogation of al-Qaeda detainee Mohammed al-Qahtani.
But that these less severe techniques do not rise to the level of torture, in the ordinary sense of the term, is unwittingly made clear by the very excerpts from the leaked record of the al-Qahtani interrogations that the ZDF report dramatically flashes across the screen: “18 December 2002, 1415: Detainee’s head and beard were shaved with electric clippers. Detainee started to struggle when the beard was touched but quickly became compliant”; “20 December 2002, 1115: Began teaching the detainee lessons such as stay, come, and bark to elevate his social status up to that of a dog. Detainee became very agitated.” The interrogators’ treatment of al-Qahtani is obviously humiliating and sometimes just asinine. But ZDF’s ominous presentation of an unwanted shave as “torture” would be outright comical, were it not for the fact that through this sort of conceptual distortion “experts” like Manfred Nowak are threatening to render international protections against torture completely arbitrary. (On the al-Qahtani case and a similar German case, which the European Court of Human Rights recently ruled did not constitute torture, see my article “‘Torture’ in the Dock” in Policy Review.)
The one-sided and inflammatory character of the Frontal21 segment is, incidentally, typical for ZDF’s reporting on the American “war on terror.” For an earlier example, involving the former Guantánamo detainee Murat Kurnaz, see here. In September 2007, on the sixth anniversary of 9/11, ZDF distinguished itself by airing a 45-minute documentary that gave a sympathetic hearing to a motley collection of “conspiracy theorists” and their contention that the American government was somehow responsible for the attacks. (See my report here.)
As for Nowak, as discussed in my 2006 essay “The Road to Condemning Guantánamo,” he has himself identified his compatriot and teacher, the late Austrian jurist Felix Ermacora, as the “inspiration” for his torture charges against the United States. Ermacora was a leading member of post-World War II revisionist circles in Austria and Germany. His work is marked by obvious resentment toward the victorious Allied powers and even by a certain admiration for the Third Reich. (In a 1986 essay, for instance, Ermacora praised what he called “a constructive policy of the German Reich” in German-occupied Czechoslovakia.) Several of Ermacora’s closest intellectual collaborators were former Nazis. These were jurists who had participated in the elaboration of Nazi legal theory and whose core ideas remained unchanged.
They included, for instance, Theodor Veiter, an essay by whom is included in a 1988 Festschrift for Felix Ermacora co-edited by Manfred Nowak. Veiter’s 1938 monograph on “National Autonomy” [Nationale Autonomie] provides a theoretical defense of the infamous Nuremberg Laws as a means for “protecting” the German nation from “the corrupting influence of the Jewish intellect” (p. 209). Ermacora himself contributed an article to a 1981 Veiter-edited Festschrift for their colleague Franz Hieronymus Riedl. Riedl was a convicted Nazi war criminal.
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