Ex-detainees seek right to sue in abuse

9 Iraqi and Afghan civilians ask federal court to allow suit against Rumsfeld, 3 Army leaders

December 09, 2006|By Richard B. Schmitt | Richard B. Schmitt,LOS ANGELES TIMES

WASHINGTON -- The debate over abuses in U.S. military prisons in Iraq and Afghanistan flared again yesterday, with nine former detainees seeking the right to sue outgoing Defense Secretary Donald H. Rumsfeld and three senior Army leaders for alleged torture.

At a hearing in U.S. District Court, lawyers for the detainees, Iraqi and Afghan civilians, said that Rumsfeld and the officers violated U.S. and international law and should be held responsible for the abuse they suffered.

The unusual lawsuit is believed to be the first to try to hold U.S. officials accountable for the prison scandal, revelations about which triggered worldwide outcry and forced an overhaul of U.S. interrogation rules.

U.S. District Judge Thomas F. Hogan indicated that he was sympathetic to the plight of the alleged victims but questioned whether they had the right under the U.S. Constitution to sue.

"It's unfortunate, to say the least, that there has to be an argument that U.S. military officials tortured citizens of another country," Hogan said. "That being said, there is substantial difficulty in recognizing claims of non-citizens held in other countries."

The prisoners alleged in the suit that they were beaten to the point of unconsciousness, mutilated, stabbed and urinated on, and endured mock executions, among other abuses. They were among the thousands of prisoners held by the U.S. military at Abu Ghraib and other locations in Iraq and in Afghanistan, including facilities in Kandahar and Bagram.

They asked the court to award unspecified monetary damages and to declare that their treatment was illegal.

Government lawyers argued that the lawsuit should be dismissed because Rumsfeld -- who gave his farewell speech to Pentagon employees yesterday -- is immune from being personally sued because he was acting within the course of his official duties.

The lawyers also said that the suit would expand the rights of citizens of foreign countries to file lawsuits in U.S. courts far beyond what the U.S. Supreme Court has allowed to date.

The judge cited the case of Johnson v. Eisentrager, decided by the Supreme Court in 1950, which held that enemy aliens had no rights under the U.S. Constitution to challenge their detention by military authorities in civilian court when they were being held outside sovereign U.S. soil.

"Given Eisentrager, I don't see how the Fifth Amendment extends to these individuals," Hogan said, referring to the Constitution's right to due process in an exchange with Lucas Guttentag, lead counsel in the lawsuit and a lawyer for the American Civil Liberties Union.

Hogan said he was concerned that foreigners would then be able to file all kinds of lawsuits.

"Where does it stop?" he asked.

Guttentag responded that the case was unusual because the United States has an unequivocal prohibition against torture and because of the extensive paper trail showing that Rumsfeld and the senior Army officials knew or should have known their policies were leading to torture.

He also said that U.S. officials should be held responsible because Iraqi law was suspended in the wake of the U.S. invasion. If officials cannot be held responsible under U.S. law for their actions, the detainees are left without any legal recourse.

"You have a rights-free zone," Guttentag said. "There is nothing that applies.

"You agree what you're asking for has never been decided by a court before?" Hogan said, to which Guttentag responded that there had never been allegations of such abuse before either.

In addition to citing violations of the U.S. Constitution, the suit also alleges violations of the Geneva Conventions' ban against torture.

Richard B. Schmitt writes for the Los Angeles Times.

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