IMAGE: Donald Rumsfeld
Jim Watson  /  AFP-Getty Images file
Defense Secretary Donald Rumsfeld seen addressing the National Press Club in Washington in February.
By Producer
NBC News
updated 12/8/2006 2:41:11 PM ET 2006-12-08T19:41:11

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 U.S. military prisons in Iraq and Afghanistan who accuse him and top military commanders of being personally responsible for the torture they say they endured.

U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. military personnel in Iraq and Afghanistan were not subject to local laws and thus must be subject to U.S. 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 U.S. 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 U.S. government is empowered to prosecute war crimes in criminal court or before a military court.

© 2013 NBCNews.com  Reprints

Discuss:

Discussion comments

,

Most active discussions

  1. votes comments
  2. votes comments
  3. votes comments
  4. votes comments