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Former Detainees Argue for Right to Sue Rumsfeld Over Torture
NY Times
December 9, 2006

WASHINGTON, Dec. 8 — Lawyers for former detainees in Iraq and Afghanistan argued in federal court on Friday that Defense Secretary Donald H. Rumsfeld was personally responsible, and thus legally liable, for acts of torture inflicted on their clients by American military interrogators.

The nine plaintiffs, Iraqi and Afghan men held at American-run prisons, endured an array of physical and psychological abuse during their confinements in 2003 and 2004, including beatings, mock executions and painful physical restraints, their lawyers said in court papers. All were eventually released without being charged with crimes.

The hearing Friday, before Chief Judge Thomas F. Hogan in Federal District Court in Washington, was the first time a federal court had considered whether top administration officials could be liable for the torture of detainees in Iraq and Afghanistan.

But the hearing concerned only questions of jurisdiction and did not delve into whether Mr. Rumsfeld, because he personally approved certain interrogation techniques in 2002 like the use of "stress positions," was legally responsible for specific acts of torture committed in overseas military prisons.

Instead, lawyers from each side argued over whether noncitizens confined in prisons outside the United States had legal standing to sue Mr. Rumsfeld and other American military officials for constitutional violations.

The suit, filed on behalf of the nine plaintiffs last year by the American Civil Liberties Union and Human Rights First, also names as defendants three officials responsible for running military prisons in Iraq and Afghanistan: Lt. Gen. Ricardo S. Sanchez, the former top commander in Iraq; Col. Thomas M. Pappas, who was the top military intelligence officer at Abu Ghraib, the American-run prison in Iraq; and a former brigadier general, Col. Janis L. Karpinski, who before her demotion to colonel was the military police commander at Abu Ghraib. She was relieved of her command and demoted after abuses at Abu Ghraib came to light.

During the two-and-a-half-hour hearing, Judge Hogan took turns questioning the lawyers. He repeatedly asked lawyers for the former detainees to cite precedents in law that would allow foreigners to sue American officials for what in the United States would be violations of their civil rights.

"How can this work, this theory that nonresident aliens have a right to sue to prevent being tortured?" Judge Hogan asked Lucas Guttentag, the plaintiffs' lead lawyer in the case. What would prevent Osama bin Laden, the judge asked Mr. Guttentag, from taking President Bush to court for authorizing the military to kill him?

Mr. Guttentag, citing several Supreme Court decisions, said that American laws prohibiting torture should apply to foreign civilians under exclusively American control and jurisdiction overseas. He also noted that in Iraq, American military personnel were immune from prosecution under Iraqi laws. "Iraqi law cannot govern, and unless the United States does, nothing else applies."

Rick Beckner, a deputy assistant attorney general representing Mr. Rumsfeld, argued that foreigners held in an American-run prison in foreign territory had no legal standing to sue. "There's never been any finding that the Constitution applies to these plaintiffs," he told Judge Hogan.

Judge Hogan, clearly skeptical of the plaintiffs' attempt to open federal officials to legal liability for actions by troops overseas, said he hoped to make a decision quickly to dismiss the case or allow some or all claims to proceed.

But in his closing remarks, the judge also acknowledged being disturbed by the allegations of detainee abuse and torture. "It is unfortunate, to say the least, that there has to be an argument" about whether the American military tortures foreign citizens.

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