Global Policy Forum

How You Can Do What the Government Won't:
Arrest Henry Kissinger

By James Ridgeway
with Ariston-Lizabeth Anderson and Sandra Bisin

You might have to be crazy. Or at least foolhardy. But you could try to bring Henry Kissinger to justice for crimes against humanity. Consider, though, what happened to the last people to talk even jokingly about plans for a citizen's arrest of the real-life model for Dr. Strangelove.

It happened 30 years ago, when Kissinger was at his Strangelovian heights. A group of anti-war protesters sought to raise the spirits of that estimable Catholic priest Phil Berrigan, then in prison for destroying draft records. The group got drunk one night, as Daniel Ellsberg recalls, and dashed off a letter to Berrigan humorously suggesting they nab Kissinger for war crimes in Vietnam. Prison authorities intercepted the mail and the FBI swooped down, charging the writers with conspiracy to kidnap the secretary of state. Dubbed the Harrisburg 6, the friends soon found themselves in a knock-down drag-out to stay out of jail.

Fast-forward to this year, when Christopher Hitchens's compact indictment, The Trial of Henry Kissinger, flares across the front cover of Harper's and clings to a lower-tier spot among Amazon.com's top-100 books. Hitchens builds a case against Nixon's man for atrocities around the globe, from East Timor and Cambodia to South America and Washington, D.C. He shows just how frighteningly small the world of Kissinger has become, as one foreign government after another tries to get its hands on him, in the same way world courts have tracked down Augusto Pinochet and Slobodan Milosevic. Chile. France. Argentina. Slowly, they're closing in.

Suddenly, the Harrisburg 6 seem less like relics of a forgotten era and more like prophets of an age to come. Here in the U.S., where the official response has been cold silence, there is renewed behind-the-scenes preparation for legal action against Kissinger. And some are again calling for a citizen's arrest, lobbying for the public to do what the government won't.

But could an average person really collar Manhattan's Milosevic? "It would surely be possible to do so, and to end up quickly in jail or a mental institution," says the noted linguist and political dissident Noam Chomsky. "A 17th-century English popular poet wrote that laws are like spider webs: 'Lesser flies are quickly ta'en, while the great break out again.' Not 100 percent true, of course, but a strong tendency, for reasons too obvious to discuss."

Some suggest Kissinger, now an aging Manhattanite, is just too cuddly. "After all, he's the darling of the establishment," says the historian Howard Zinn. "These are all people who have had dinner with him. They don't want to say they've had a war criminal for dinner."

Others question why Hitchens—or his readers—would bother with busting Kissinger. "He was very much a No. 2 man, subordinate to Richard Nixon," recalls Ellsberg, of Pentagon Papers fame. "It's absurd to say he's the principal architect. Of course he's deserving of trial. But some people imagine that Nixon didn't have the wit to think up those crimes on his own, and that's quite mistaken. Kissinger was simply a very loyal, opportunist subordinate."

Nonetheless, there is a growing movement to put him in the dock as the perp—or at least a witness—in crimes against humanity. The old Harvard professor has to watch his step. Though he still moves freely about the streets of New York, this "war criminal" had to slip out of Paris in May when French police tried to serve him with a court summons. Activists from the East Timor Action Network have repeatedly sought to question Kissinger during his book tours, but again the former secretary of state either didn't answer or disappeared. Demonstrators have also hounded him at speeches around the country. This month, an Argentine judge ordered Kissinger to testify in a human rights trial concerning a plan by Latin American governments to kidnap and kill leftists during the 1970s.

And in July, a judge in Chile sent questions to Kissinger as a witness in a suit brought by Joyce Horman, the widow of Charles Horman, a young journalist killed during the Pinochet coup. Not amused, an administration source told the London Telegraph, "It is unjust and ridiculous that a distinguished servant of this country should be harassed by foreign courts in this way."

Kissinger, who didn't respond to Voice questions, shows some signs of knowing the heat is on. In his mounting campaign to protect his image, he recently agreed to release 10,000 pages of his papers kept under seal at the Library of Congress. Such goodwill gestures may not be enough to save the self-styled Dr. K. from a citizen's arrest, in which he could legally be plucked off the sidewalk and deposited at a nearby precinct station for booking.

He keeps a fairly low profile these days, but he's hardly invisible. Though it's not listed on the midtown building's marquee, the office for Kissinger Associates is located at 350 Park Avenue, on the 26th floor. Anyone can enter the lobby, passing a security guard and concierge unchallenged. Kissinger's own receptionist sits behind a glass window. The spartan room contains a dark wooden table, upon which rest a white phone and an ashtray, a single couch and two armchairs, and a security camera mounted in one corner. The receptionist politely tells a visitor Kissinger is not in. Not expected. Who knows when he might drop in.

Don't think you can just hang around and wait for him to show up. A citizen's arrest is not so easy. While the laws differ from state to state, they generally allow for anyone who witnesses a felony, or knows which person committed one, to make an immediate arrest. That can include a "reasonable" amount of physical force. It would also normally involve some participation from the cops.

Back down on Park Avenue, across from Kissinger's office, police officer John Vanasco explains the procedure. "We take the person and process the paperwork," he says. "If it is a crime, we take the person in custody, but we need probable cause proving that the crime was committed."

In the case of someone accused of being a war criminal, Vanasco says, city cops refer the matter to federal agencies, then hold the suspect for them.

A spokesperson for the NYPD puts it slightly differently. "Citizen's arrest has nothing to do with us," he says. "You make the arrest on your own. We do nothing more than transport the person. We are not making the arrest. We are not involved in this."

Kissinger also keeps a home in Litchfield County, Connecticut, where state police say citizen's arrests are not allowed. If you tried to capture him en route, you'd get to deal with the New York State police. "It's all based on what the citizen says," a spokesperson reports. "They may sign paperwork, but they don't go out and physically arrest someone. It's not like it is in the movies. It doesn't happen a lot."

The legal details of a citizen's arrest are downright confusing. "It's a tricky issue," says Norman Siegel, former director of the New York Civil Liberties Union and current candidate for public advocate. For misdemeanors, he says, cops usually just write the accused a ticket. Felonies are another matter. When approaching a person you intend to pick up, you're supposed to explain that you're about to make an arrest, and tell the suspect why. That's when the situation can turn ugly. What if the person tries to run away while you're calling the cops from your cell phone? "Do you tackle them?" asks Siegel. "Cuff them?" The tables could quickly turn, and you'd be the one violating the law.

And if cops have reason to doubt the merit of accusations, they don't have to follow through with the arrest. "A citizen's arrest doesn't really work," says attorney Michael Ratner of the Center for Constitutional Rights, who has tried to nail various war criminals, from the contras to Haiti's Tonton Macoutes. "They have to be committing a felony in front of you."

Still, despite all the hassles, citizen's arrests are used in New York City. The unarmed New York Guardian Angels make about two a year. "Basically every citizen has the right to make a citizen's arrest," says Mark Moore. "You physically restrain a person and hold them until the local cops come. We're trained in restraint holds, arm bars, and different locks."

Since Hitchens and others go after Kissinger for war crimes against civilian populations—like killing 200,000 Timorese, one third of the population—one might think the big human rights organizations would weigh in on this subject. But when it comes to Dr. K., these groups tread lightly.

Alistair Hodgett, Amnesty International's American media director, says his agency can do little until the government declassifies reams of information. Even then, Amnesty wouldn't necessarily take aim at Kissinger. "We would put the emphasis with the U.S. government to look at significant information," Hodgett says. "I don't believe or suggest that that's likely to occur."

The Lawyers Committee for Human Rights likewise barely dips a toe in the water. "The international justice system shouldn't be about any one case," says Raj Purohit. "If there is someone who has solid evidence, then he [Kissinger] should be held accountable."

As for a citizen's arrest of Kissinger, Purohit says, "That's not something we would support. When it comes to these most serious crimes there has got to be a proper [order] from a tribunal or indictment. I think under any of these tribunals none of these would apply to Kissinger."

Human Rights Watch is similarly reluctant to style Kissinger in prison stripes. "If Henry Kissinger signed off on bombing targets in Cambodia and Laos knowing that they included civilian areas, as accounts have suggested, then he could be charged with war crimes, by his victims or by the victims' families," says Reed Brody, an attorney who has gone around the world prosecuting human rights crimes. "But I think that it's difficult not to confuse legal, political, moral, historical responsibility on the one hand, and criminal liability on another."

Despite such gloomy prognoses, there are other hopes. Ratner thinks you could bring a civil action in Washington against Kissinger on behalf of the children of General René Schneider, the Chilean general who was shot during the Pinochet coup. And it might be possible to file a racketeering complaint in New York arguing that Kissinger and others conspired using the interstate communications—i.e, phones, faxes, etc.—to murder American citizens.

Another country could order him brought to trial on their soil. "Under the extradition laws, we do not have any exceptions for American nationals," argues Alfred Rubin, a professor of international law at Tufts University. "The U.S. has extradition treaties with many countries, including Spain, and we do not except American nationals from their operation. If any countries in Europe or elsewhere would like to extradite Henry Kissinger, they can bring a case right now in an American court—and I'll bet you that Henry Kissinger knows all about that."

Finally, it is conceivable that the widow of Charles Horman, the young journalist who was killed in the Pinochet coup and was made famous by the film Missing, could bring a suit under the civil rights statutes on grounds that Kissinger and others conspired to deprive her husband of his rights. Since the conspiracy took place in the U.S., the suit might have standing in federal court.

Kissinger also might be prosecuted under the Alien Tort Claims Act. There has been considerable talk among lawyers about bringing such a suit on behalf of Chilean parties. Here the prospects are dicey, save for an opening granted by the courts to sue CIA officials for torture in Guatemala. In another case, lawyers argued in a Miami federal court that contra leaders conspired in Miami to kill Ben Linder, a young American engineer in Nicaragua.

The Chilean judge sitting on a case against Pinochet is asking Kissinger to come as a witness. Georgia Democratic representative Cynthia McKinney recently wrote Secretary of State Colin Powell, asking for help in persuading Kissinger to take the stand. She said Milosevic's arrest should allow the public to concentrate on Kissinger now; if she desires, McKinney is in the position to open a forum on the subject.

But heading to Chile to testify would place Dr. K. in the position of discussing—in public and under oath—decisions he'd just as soon forget. Still, Horman's widow thinks he should do what's right. "I don't see why Henry Kissinger would not want to answer the questions," says Joyce Horman. "He's not a defendant in our case; he's a witness. Considering that he has said several times that he has no knowledge of the death of Charles Horman, he should have no reason not to answer these questions."

One of the strongest calls for an investigation into Kissinger stems from the violence in East Timor, where he stands accused of supporting Indonesia's 1975 bloody occupation of the recently freed Portuguese colony. In 1999 East Timor once again exploded into violence, which U.S. troops attempted to quell. A subsequent human rights commission proposed that the UN itself set up a war crimes tribunal.

The U.S.-based East Timor Action Network would like the tribunal to extend back to the original invasion. It could become a tool to find out what actually happened, and a mechanism for trying Kissinger. "I believe a criminal case can be made against him," says John Miller, a spokesman for the group. "One country invaded another. He aided and abetted genocide. He provided a political go-ahead and was instrumental in continuing the flow of U.S. weapons." As for supporting a citizen's arrest, Miller says that would depend on how it was done. "We are not into assaulting people," he says. "It would be mostly as a way of furthering public education."

No doubt Kissinger is a disappearing symbol of the Cold War in general and Indochina specifically. During a recent forum sponsored by Harper's magazine at the National Press Club in Washington, a group including journalists and former government professionals questioned why Kissinger should be singled out when an entire administration ought to take the blame.

"These were not unique actions," said Scott Armstrong, whose National Security Archive has consistently dug up and published America's dirty laundry. "They were not covert. They were not Oliver North-type government out of control. These were deliberate manipulations of the levers of power. And Henry Kissinger was—is—very much in the loop. He defined the loop. And [Hitchens's] indictment is of an entire administration. And those who served with him, above him, across the Potomac, and even in Congress bear similar measures of responsibility."

In a Voice interview Noam Chomsky seconds that idea. "Kissinger observes, correctly, that he was conducting the foreign policy of the U.S.," he says. "The U.S. is a powerful state, overwhelmingly powerful, in fact. It follows that its leadership can make mistakes, but it cannot commit crimes in the technical Orwellian sense. Only enemies, or those who are weak and defenseless, can commit crimes in the literal sense. Accordingly, it is inconceivable that there would be an effort to bring Kissinger to trial.

"And even if it were done, he could correctly plead selective prosecution," Chomsky adds. "After all, it was the Kennedy administration that escalated the war against South Vietnam from Latin America-style terror to outright aggression, and the Johnson administration that escalated the attack sharply, also extending it to the rest of Indochina."

Roger Morris, best known for his scathing biography of Bill Clinton, worked under Kissinger in the National Security Council during the Nixon era. At the Press Club forum, Morris said he personally worked on a covert effort (unknown to either the secretary of defense or state) to reach a peace agreement in Vietnam. "There was on the table in the early spring of 1970 a negotiated withdrawal of American forces by the end of 1970," he said. "That was interrupted by the dementia, not, alas, of Henry Kissinger, but of the man he worked for—Richard Nixon—and the ensuing Cambodian invasion. And you know the sequel: Several thousand Americans died in the years that followed as a result." He concluded, "Henry's transgressions would not have been possible without the active intellectual and substantive support of his aides."

Moreover, there's the whole question of what international law is intended to accomplish. "International law does not involve personal crimes," argued Rubin, the Tufts professor. "I would emphasize that immorality is not illegality, and illegality is not personal criminal liability."

But a court hearing could do more for a nation than punish its most visible villains. "I think it would be good to have a trial," says Zinn, the historian. "I wouldn't want to put him in jail. I don't want to put any of these people in jail. I don't believe in that. I think it should be more like the truth commission in South Africa. Hold them up to the world, shame them, and ban them from dinner parties."

There may be no tracking down of every powerful figure who has ever broken the rules. Trace it right back through history, says former White House candidate Ralph Nader. "Do you know any president who hasn't violated international law dozens of times?" Nader says. "If Kissinger is a war criminal, what about Clinton, who killed citizens in Iraq? You can't pick one person out. It doesn't have credibility. International law is known primarily for violating it. Is there anything the U.S. won't do abroad in violation of international law?"

For now, the way Kissinger's world keeps shrinking may have to be punishment enough—at least until someone takes action. "Maybe if he makes a mistake and travels abroad where he doesn't expect to be apprehended, then that country could arrest and try him," concludes Zinn. "He doesn't want to set foot in France because he's afraid of that. I think that's a very nice little punishment that doesn't allow him to see Paris ever again. Apprehending him in the U.S., with the judicial system and friends—even so-called critics? Nothing is going to happen to him unless someone makes a citizen's arrest."

Harms and the Man

An indictment of Henry Kissinger for genocide, crimes against humanity, and war crimes would include (but not be confined to) the following.

VIETNAM: Kissinger scuttled peace talks in 1968, paving the way for Richard Nixon's victory in the presidential race. Half the battle deaths in Vietnam took place between 1968 and 1972, not to mention the millions of civilians throughout Indochina who were killed.

CAMBODIA: Kissinger persuaded Nixon to widen the war with massive bombing of Cambodia and Laos. No one had suggested we go to war with either of these countries. By conservative estimates, the U.S. killed 600,000 civilians in Cambodia and another 350,000 in Laos.

BANGLADESH: Using weapons supplied by the U.S., General Yahya Khan overthrew the democratically elected government and murdered at least half a million civilians in 1971. In the White House, the National Security Council wanted to condemn these actions. Kissinger refused. Amid the killing, Kissinger thanked Khan for his "delicacy and tact."

CHILE: Kissinger helped to plan the 1973 U.S.-backed overthrow of the democratically elected Salvador Allende and the assassination of General René Schneider. Right-wing general Augusto Pinochet then took over. Moderates fled for their lives. Hit men, financed by the CIA, tracked down Allende supporters and killed them. These attacks included the car bombing of Allende's foreign minister, Orlando Letelier, and an aide, Ronni Moffitt, at Sheridan Circle in downtown Washington.

EAST TIMOR: In 1975 President Ford and Secretary of State Kissinger met with Indonesia's corrupt strongman Suharto. Kissinger told reporters the U.S. wouldn't recognize the tiny country of East Timor, which had recently won independence from the Portuguese. Within hours Suharto launched an invasion, killing, by some estimates, 200,000 civilians.

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