"Torture" in the Dock

Policy Review, Dec 2008/Jan 2009 by Rosenthal, John

But this is where the second salient aspect of the ECHR Gäfgen ruling is especially relevant. For while the ECHR found that the Frankfurt police's treatment of Gäfgen did constitute "inhuman treatment," it accepted the Frankfurt District Court's judgment that under the circumstances this treatment did not warrant punishment.

The compassion shown for the perpetrators in the Frankfurt court's judgment is striking. In adumbrating the "massively extenuating circumstances" that on its view militated against the application of sanction, it notes that "for both of the accused, it was exclusively and urgently a matter of saving the child's life." It is "also to be taken into account," the Court adds a bit further on, "that G'S [Gäfgen's] provocative and unscrupulous manner of answering questions strained the nerves of the investigators to the ing point (aufs äußerste strapazierte). Trained in law, he knew how to formulate and present his responses, so that they constantly produced doubts, hopes, and disappointments and provided no certainty." "Moreover," the Court continues, "the situation was extraordinarily chaotic. The police had been on duty overtime. They were worn out tired. The accused E. [Ennigkeit] had worked through the night and the accused D. [Daschner] had only slept for a few hours. The overwrought sensibilities of the accused substantially reduces their guilt, since they lowered their inhibitions to acting. Neither man could take any more. Furthermore, both of them had led irreproachable lives up to that point." And so on.12

One may well wonder whether the accusers of Donald Rumsfeld and other Pentagon officials would be prepared to acknowledge "massively extenuating circumstances" in their cases. But if the desire to save the life of an eleven-year-old boy is an extenuating circumstance, how can the desire to prevent a follow-on attack to 9/11 and to save potentially thousands of innocent lives not be one? And if the difficulty involved in questioning a wily and arrogant 27-year-old student who has been "trained in law" is an extenuating circumstance, how can the difficulty involved in questioning an evasive and potentially dangerous al Qaeda operative who has been trained in operational security measures not be one?

To deny the same degree of forbearance to American officials and personnel involved in the war on terror is to imply that irregular combatants forming part of terrorist organizations deserve greater legal protections not only than ordinary prisoners of war, but indeed than ordinary citizens. Such an absurd - and for the United States suicidal - logic could only be embraced by persons who are fundamentally committed to seeing American counterterrorism efforts fail.

1 Schriftliche Urteilsgründe in der Strafsache gegen Wolfgang Daschner [Written Judgment in the Case against Wolfgang Daschner], Landgericht Frankfurt am Main (February 15, 2005 ); Judgment in Case of Gäfgen v. Germany, European Court of Human Rights, Strasbourg (June 30, 1008); ?Ein Mörder im Zeugenstand, " Frankfurter Allgemeine Zeitung (November 26, 2004).