Joel Seidman / MSNBC – 2006-12-12 22:38:19
Rumsfeld Faces Personal Suit by Tortured Detainees
Joel Seidman / MSNBC
WASHINGTON (December 8, 2006) — A federal judge said Friday he would rule quickly on whether to allow outgoing Defense Secretary Donald Rumsfeld to face a civil trial on allegations by nine former detainees at US military prisons in Iraq and Afghanistan who accuse him and top military commanders of being personally responsible for the torture they say they endured.
US District Judge Thomas Hogan told lawyers for the American Civil Liberties Union, who are representing the former detainees, “What you’re asking for has never been done before.”
The lawsuit contends the men were beaten, suspended upside down from the ceiling by chains, urinated on, shocked, sexually humiliated, burned, locked inside boxes and subjected to mock executions.
Rumsfeld’s Lawyers Claim Qualified Immunity
But Judge Hogan also appeared reluctant to give Rumsfeld immunity from the torture allegations. “It’s unfortunate, to say the least, that there has to be any argument that the US military tortured citizens of another country,” Hogan said.
The judge questioned the scope of that immunity and asked whether it protects the government officials from liability for everything. “Would you take the same policy if the argument was one of genocide?” Hogan asked. “Are you saying there could be no inquiry done?”
Deputy Assistant Attorney General C. Frederick Beckner III said abuse claims should be handled by the military, which has prosecuted more than 100 such cases. He argued that Rumsfeld cannot be held legally responsible because anything he may have done — including authorizing harsh interrogations at the Abu Ghraib and Bagram detention facilities — was within the scope of his job as defense secretary to combat terrorists and prevent future attacks.
The case of Ali v. Rumsfeld, pitted lawyers from two human rights organizations representing the former detainees at Abu Ghraib and the Bagram military base in Afghanistan, against attorneys representing Rumsfeld, Gen. Ricardo Sanchez, former Brig. Gen. Janis Karpinski and Col. Thomas Pappas.
The case is an attempt to have US officials held accountable for alleged abuse of Iraqi and Afghan civilians who were never held as enemy combatants or charged with any crime.
Pattern of Rights Abuse Alleged
The former detainees accuse Rumsfeld and others of being personally responsible for approving torture techniques and violating the US Constitution. Rumsfeld argues that he is immune from liability because he cannot be held legally responsible for what he may have done — including authorizing harsh interrogations at the Abu Ghraib and Bagram detention facilities — because it was within the scope of his job as defense secretary to combat terrorists and prevent future attacks.
Rumsfeld’s attorneys argue, “that alien military detainees held outside the United States are not generally entitled to constitutional protections.”
But lawyers for the human rights organizations countered, saying that US military personnel in Iraq and Afghanistan were not subject to local laws and thus must be subject to US laws. They said there cannot be regions of the world that have, “rights free zones.”
Hogan acknowledged that this put him in the position to have to set precedent if he allows non-American citizens to claim constitutional rights.
Rumsfeld’s lawyers contend that under the qualified immunity doctrine, “federal officials are immune from suit” unless they violate a clearly established constitutional right. They say that aliens held in a military detention facility in the field of battle abroad simply do not have established constitutional rights during their alleged detention and abuse.
Rights and Liability at Issue
The former detainees who filed the lawsuit say they were all eventually released from detention and never charged with any crime or wrongdoing.
The detainees – five were held at Abu Ghraib and four at Bagram – accuse Rumsfeld and the others of subjecting them to “torture and other cruel, inhuman or degrading treatment or punishment, including severe and repeated beatings, cutting with knives, sexual humiliation and assault, confinement in a wooden box, forcible sleep and sensory deprivation, mock executions, death threats, and restraint in contorted and excruciating positions,” according to court documents.
Judge Hogan must rule on whether the former prisoners — all foreign nationals — have rights under the Constitution or international law to make their claims, and whether government officials are immune from liability for their actions and those of their subordinates.
Lawyers for the American Civil Liberties Union and Human Rights First argue that Rumsfeld “authorized an abandonment of our nation’s inviolable and deep-rooted prohibition against torture or other cruel, inhuman or degrading treatment or punishment of detainees in US military custody.” They say these acts precipitated “further violations of law and directly led to the abuse of Plaintiffs and other detainees in Afghanistan and Iraq.”
Karpinski, the commander of Abu Ghraib prison, was demoted to colonel after the abuse found there. She has said she was made a “scapegoat” to protect her superiors. Sanchez was commander of coalition ground forces in Iraq during the Abu Ghraib scandal; he retired in 2006, calling his career a casualty of the prisoner abuse.
Pappas, a former commander of military intelligence at the prison, was given immunity in exchange for his testimony against an army sergeant.
The suit seeks compensatory damages and a judicial declaration that the legal rights of the prisoners were violated under the Constitution, the Geneva accords and other international law.
Although allegations in the suit may be the equivalent of war crimes, it is a civil case, not a criminal one. Only the US government is empowered to prosecute war crimes in criminal court or before a military court.
© 2006 MSNBC Interactive
Court Weighs Rumsfeld Torture Claim
(December 9, 2006) — The American Civil Liberties Union and Human Rights First have argued before a US federal court that Donald Rumsfeld, the outgoing secretary for defence, should be held accountable for torture and abuse.
The hearing marked the first time a court has considered whether top US officials can be held accountable for torture in Iraq and Afghanistan.
“There must be legal accountability in a court of law for high-ranking government officials who order or allow torture in violation of the most fundamental legal norms that govern our society,” said Lucas Guttentag, an ACLU lawyer and lead counsel in the case.
The ACLU, Human Rights First, retired military leaders, and the law firm of Lieff Cabraser Heimann and Bernstein filed the case in March 2005 on behalf of nine civilians who were detained by the US military in Iraq and Afghanistan.
“Torture is universally prohibited but Secretary Rumsfeld and the other defendants have not been held responsible for the orders they gave and the abuse they permitted,” said Guttentag.
While in US custody, the captured civilians were subjected to abuse, torture and other cruel and degrading treatment, including severe and repeated beatings, cutting with knives, sexual humiliation and assault, mock executions, death threats, and restraint in contorted and excruciating positions.
All of the men were released without charge.
“Our clients’ case is about ensuring that there’s meaningful accountability, to create an effective deterrent against future violations and to ensure the courts’ ongoing role in enforcing the law against torture,” said Deborah Pearlstein, director of Human Rights First’s law and security programme.
“The Supreme Court has made it clear that wartime does not create a law-free zone.”
The ACLU and Human Rights First have argued that the US constitution and international law clearly prohibit torture and require commanders to act when they know or should have known of abuses.
In addition to the orders they gave directly, Rumsfeld was repeatedly notified of abuse and torture at detention facilities in Iraq and Afghanistan by military reports, the International Red Cross and other reports and complaints by human rights organisations.
‘Cruel War Machine’
Rumsfeld has been personally accused for approving brutal and illegal interrogation techniques in December 2002. Those techniques included the use of ‘stress positions’, removal of clothing, use of dogs, and isolation and sensory deprivation.
Khalid Issa Taha, chairman of Lawyers Without Borders, said exclusively to Al Jazeera “it has been legally proved that Rumsfeld had ordered the torturing of defendants in the Iraqi Abu Ghraib prison”.
“The history of nations and human rights violations has never witnessed acts such as those committed by Donald Rumsfeld, the US secretary of defence,” Taha said.
“Unfortunately, the United States has refused to prosecute him [Rumsfeld] or hold any of the Americans, working in its battlefields in Iraq, Afghanistan or any other country, legally liable,” he added.
“Rumsfeld is the head of the ‘cruel war machine’ which has committed many crimes,” he added.
Experts urged that allowing the federal case to proceed would not intrude into matters of military decision-making, but would reinforce the military’s interest in command responsibility.
Official government reports have documented many horrific abuses inflicted on detainees in US custody.
The US Federal Bureau of Investigation began to complain about interrogation techniques used by the military on detainees in Guantánamo in 2002. Techniques used in Guantánamo have spread to Afghanistan and Iraq.
Media reports have also brought many disturbing incidents to light, including the deaths of detainees in custody.
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