Will Rumsfeld Finally Be Held Accountable For Authorizing The Use of Torture?
The upshot of the Bush Torture Regime — the systematic use of Nazi-like interrogation techniques against foes and friends like — has been deeply dissatisfying. The mainstream news media has been studiously uncurious about the criminal behavior of top administration officials and their lackies, and none have been held accountable.
But that may be about to change.
A federal district court judge in Washington, D.C., ruled earlier this month that a lawsuit against former Defense Secretary Donald Rumsfeld, one of the key architects of the torture regime, could go forward. While other lawsuits brought by so-called enemy combatants against ranking administration officials have foundered, this one is different because the plaintiff, identified in court papers as “Joe Doe,” is a former military translator who claims that he was tortured by U.S. forces at a Camp Cooper, a military base in Iraq, and the judge found that American citizens don’t lose their constitutional rights simply because it’s wartime.
Meanwhile, a three-judge court of appeals panel in Chicago came to a similar conclusion this week in green-lighting a lawsuit against Rumsfeld filed by Donald Vance and Nathan Ertel, both American military contractors who also claim they were tortured at Camp Cooper.
Vance, a Navy veteran who went to Iraq as a security contractor, contacted the FBI when he observed suspicious activities such as illegal weapons trading with American troops for liquor at the Iraq security firm where he worked. But when Army soldiers raided the firm, Vance and Ertel were detained as suspected enemy combatants and tortured. The Army was unaware that Vance was an informer.
Neither were ever charged, and in a familiar scenario, both were merely released at the Baghdad airport and had to make their way home on their own.
Rumsfeld’s lawyers argue that even even if the plaintiffs’ versions of events are true, Rumsfeld should not be held accountable because it was unreasonable that he would have known that the abuse he authorized was unconstitutional. Besides which, the court rulings are a troubling intrusion into the executive branch’s war-making powers.
Sadly, the Obama administration has taken the same position.
26 Responses to “Will Rumsfeld Finally Be Held Accountable For Authorizing The Use of Torture?”
One of the primary reasons I voted for Obama was his promise of full disclosure and judicial investigations of the Iraq war. Shortly after he took office he made a speech stating the past was past and we should move on, giving the Bush Administration a free pass. I knew if the Democrats refused to hold the Executive Branch accountable, no future administration would ever be held accountable for immoral and possibly criminal acts perpetrated in our name. I’m ashamed that my nation made a first strike attack on foreign nation without cause. Iraq was never involved in 9-11, nor did it have any weapons of mass destruction aimed at us or our allies. The Democract have sanctioned the policy that the USA can invade any sovereign nation to overthrow a government with only the excuse of removing an unpopular or that we are bringing our form of democracy to them. Bush was an unpopular president. Now Obama is unpopular and the current Congress has record low approval ratings. Does this mean, by our own example, China would be justified invading the USA to “free” us?
Before 9-11 I would never have believed my country would engage in a first strike war and torture tactics we prosecuted the Axis powers for using 60 years ago. A war crime in 1945 is a war crime in 2001 and beyond.
I know this is going to come out wrong so
I am putting on my flack jacket and helmet, and in advance, I don’t blame you all for being angry.
Rumsfeld was part of the defense department and under the command of the Chief, Bush. The torture was wrong, but any number of people plus Bush could have stopped it. Presidents have to act on the present circumstances (for instance, the bombing of H&N) without worrying about a future reprisal or law suit, or else they will be hampered in their primary duty, protecting the country. As much as I dislike what some administrations do, I feel that they have to be protected from retribution. I know this is a simplistic viewpoint, but that’s it. Lock and load. Fire when ready
Shaun I only glimpsed at it but I thought I understood too that in order for this thing to have any repercussions for Rumsfeld, he would personally have to be implicated, as having personal knowledge of these tortures of these specific citizens. (I may have misunderstood the procedural details…)
Anyway, this will leave a dark stain on Americans for decades to come, and the John Yoo recommendations for our prior administration will be a cancer that we won’t ever have the political will to cauterize.
As critical as we may be about this administration not allowing prosecution of the prior administration, I honestly believe that if that had happened, we would be nearer a full-blown civil war as we’ve been since the 1800s. Which is a sad state of our affairs, and our political divide, indeed.
I think Obama has been the absolute softest president toward his political opponents as I’ve ever seen, more-so than Clinton, and we have another Texas republican calling for his impeachment…
The United States has already been indicted by the world for these acts. They are leveraged against us at every opportunity. What we do about them now is irrelevant because it is to late.
So go ahead Duck, tell us all about domestic law suits.
lol
The only reason that I would hope that Rusmfield gets hit, is that it might open the doors to holding accountable the others who started this.
(Not everything detestable is “Nazi-like”, BTW. Godwin’s law is supposed to signal the breakdown point in a discussion, so it makes a poor starting point.)
And by default, all administrations will defend the previous one, partly because the lawsuits are usually underway when they take over, and partly because it would limit their own power.
gem326:
I believe that on balance Obama has been a good president and a president for these troubled times.
His decision to put political expedience before accountability is understandable. Had he ordered DoJ to go after the torture regime architects, the opening months of his administration would be been mired in partisan flame throwing. As it turned out, that is exactly what the Republicans ended up doing anyway, but the decision to not go after Rumsfeld et. al. still rankles.
Prof:
Goodwin’s Law does not apply here as the techniques used were carbon copies of the techniques that the Nazis used with a pinch of Chinese/North Korean techniques thrown in for good measure.
They deserve sovereign immunity, and of course any extra-territorial and thus extra-jurisdictional claims of rights to prosecute by any other nation’s government are nonsense, but if exercised, amount to acts of not merely terrorism, but war, and should be treated as such.
* * *
“Godwin’s law” is a silly lefty Net nose-picker game unfortunately perpetuated by the susceptible. It has no serious place among serious people.
Maybe Ramsey Clark can hold a “symbolic trial” in the UN General Assembly with various suitable representatives from Libya, Syria, Cuba, etc., as the jury or just someone from each of those three as a tribunal, with a vote of approval or rejection by the Assembly.
[snicker]
Prof., what the Bush administration did was wrong, as has been so about previous administrations, but when the obsession among an extremist fraction of the fringe becomes the real story, as was the fact when Bush was in office, obviously something else is to take precedence. What’s really the reason for the attacks?
Sorry DLS its not an extremist view to want to bring some justice to the guys in charge who decided to throw out what we stand for to get what they want. American forces tortured people, sometimes to death. WE DON’T DO THAT. Our values are our values and when you break them you break what it means to be an American. Rumsfeld did so with abandon. I’m still sick over what our leaders did in the name of patriotism.
Well, DLS, then you can count me in with the fringe. I don’t care if people are doing it for the wrong reasons, that doesn’t distract from the fact that there are also good reasons. Heck, all legitimate causes have hitchhikers with their own agendas.
If the feds (or anyone else) can kidnap, steal, and torture their own citizens for no stated reason and without fear of consequence, we have nothing more than an elected oligopoly.
I know this will come as a disappointment to some, but I do not see how anybody gets around the defenses that Rumsfeld raises. This seems to fall into the arena of the political question doctrine, and the courts generally, and especially the Supreme Court, tend to give wide berth to the power of the Executive Branch to conduct foreign policy and wars, as political questions. Indeed, the Supreme Court may well find a lack of jurisdiction to bring these cases.
Yup………………………………..
No, the plaintiffs don’t have to prove that Rumsfeld ordered them personally tortured. They just have to prove that the torture was the direct result of an illegal order by Rumsfeld, and that Rumsfeld should have known it was illegal.
Example: Attorney General orders the FBI to shoot all redheads on sight. An FBI marshal proceeds to seriously wound Joe Flamehair, a redhead, whom the Attorney General has never heard of. Joe doesn’t have to prove that the AG specifically ordered the marshal to shoot Joe in particular; he just has to prove that the marshal shot him because of the AG’s illegal order (and not because Joe was assaulting the marshal or some other legitimate reason).
There is a world of difference between where the plaintiffs are (alleging that Rumsfeld personally gave the order) and where they would need to be (proving it by a preponderance of evidence) to win.
There is almost no chance they can meet their burden of proof. This is entirely a political lawsuit designed to get attention by surviving a 12(b)(6) motion. It should be Iqbal’d in the Twombleys.
Since the case already survived the 12(b)(6) motion, it’s already survived Iqbal and Twombley. The court has ruled that the complaint states a cause of action, which is the only thing Twombley and Iqbal are concerned with.
There’s already evidence in the public record that Rumsfeld personally ordered certain interrogation techniques, like forcing people to stand all day. Whether they can prove that he also ordered freezing, sleep deprivation, or slamming people into walls, we will see.
Maybe Rumsfeld is innocent, but even if he is, two Americans who risked their lives to help the FBI catch arms smugglers have still been brutally and illegally victimized by government agents, and whichever government agent IS in fact responsible must be brought to justice. So there is no reason to say that the case is just political
Daniel, thanks for commenting and welcome to the site.
You are correct that the courts have already ruled on the 12(b)(6) motion. But just like most here (including yourself, I would guess) disagree with the Citizens United decision, I disagree with the rulings on those 12(b)(6) motions. I believe this case is too close to the facts in Iqbal not to receive the same treatment: dismissal.
[...] Will Rumsfeld Finally Be Held Accountable For Authorizing The Use of Torture? (themoderatevoice.com) [...]
Iqbal just requires that the alleged facts be “plausible.” I think the allegations of Cabinet-level orders here are more plausible than in Iqbal, because 1) we know that Rumsfeld examined interrogation techniques and ordered them made harsher, and 2) the specific illegal techniques used here (freezing, hooding, sleep deprivation for days) have been reported in multiple other commands as far away as Guantanamo, making it more plausible that all were acting on orders from the top than that several different local commanders all came up with the exact same idea independently. In Iqbal, both prisoners were held in the same place, and the perpetrators may well not even have been in the Justice Department’s chain of command, so it was less clear that their mistreatment had to have been authorized by the Attorney General.
The interesting thing will be whether Vance and Ertel can get any worthwhile discovery. The government will probably refuse to hand over any evidence at all, citing national security; if the court accepts that, the plaintiffs are screwed, because then they’ll have no hope of identifying who beat them up. And the Obama administration has been every bit as secretive as the Bush administration.
(BTW, I’m agnostic on Citizens United).
Daniel,
Perhaps we can agree, then, that one of the many flaws of the “plausibility” standard is that what is “plausible” is irreducibly a subjective determination that will be influenced in a case like this by the judge’s political predispositions towards the target of the suit. A judge philosophically opposed to the Bush administration’s policies regarding the so-called “war on terror” wil be more likely to find it “plausible” that Rumsfeld directly ordered treatment that would amount legally (not just rhetorically) to “torture” than a judge that is philosophically supportive of a hard-line national security policy.
Logan,
Sorry for delayed answer. Yes, I agree that the plausibility standard is badly flawed, which is why I don’t agree with the Iqbal ruling. It is a very poor solution to a very real problem, the fact that discovery is so time-consuming and expensive that it can be used as a threat in itself. I would prefer to attack the problem by reforming Rule 11 to make it both a real deterrent to baseless lawsuits and less susceptible to abuse, rather than have judges make these subjective plausibility rulings.
I think part of the problem is that the definition of “baseless” has just as much subjectivity as the definition of “plausible.”
But I am pleased that we at least agree on the nature of the problem. The Twombly case was a great example of a case where the plaintiff sought to use discovery as a weapon in itself. The Iqbal case, I think, represented the Court’s belief that some meritless lawsuits seek to get past 12(b)(6) for reasons other than discovery-as-a-weapon, such as political harassment. Cf. Paula Jones.
I’m not sure Rule 11 reforms could suffice to address these problems. But perhaps they might do a better job than the “plausibility” standard.
Often, yes, “baseless” will be hard to determine. But sometimes it’s quite easy. I could pull a case out of my CivPro book right now where the plaintiff ADMITTED he was lying about the central allegation of his complaint, and the appellate court still reversed the lower court’s Rule 11 sanctions. Cases like that make Rule 11 nearly toothless.
Take Vance and Ertel’s case. I personally believe Rumsfeld was up to his ears in illegal interrogation methods, but let’s say I’m wrong and the plaintiffs are lying. The best way to show that they are lying is evidence: contradictions in their statements under oath, video of them sleeping with the lights out when they say they were being kept awake, etc. A judge is in no position to evaluate that from scanning the allegations of a paper complaint. But once he’s seen the evidence, he’s in a much better position to rule (a case comes to mind where the plaintiff said he was taking his driver’s test when police video showed he was in a high speed chase). But by the time the evidence is in, the harm of needless discovery has already been done, so then the judge needs to be able to hit much harder with Rule 11 sanctions to deter future plaintiffs from doing the same. And while there often won’t be a “smoking gun” to prove that the plaintiff has been lying, the plaintiff often won’t know that.
I’d like to know why you said that Vance and Ertel have almost no chance of meeting their burden of proof, even though many sources, including U.S. servicemen, have reported similar things happening to other prisoners. Beside the possibility I mentioned above, that the government will just declare all the relevant evidence a national security secret, why are you so sure that the evidence won’t uphold their story?
I find it unlikely that they could meet a burden of proof for two reasons: (1) It is unlikely that they could meet the knowledge requirement because, rightly or wrongly, there were colorable legal arguments at the time that “enhanced interrogation techniques” did not amount to “torture”. Since the plaintiffs must prove not only that it was torture but that Rumsfeld personally knew it to be torture, I don’t see how they could prove it. (2) Even if Rumsfeld did know, I find it unlikely that there would be a smoking-gun document that not only tied him personally to the policy directives but also to his knowledge of an illegal order. I served long enough in the military to find it highly unlikely that the SECDEF would personally approve individual interrogation techniques, especially as applied to a particular individual (as alleged in the complaint). Moreover, even if he did personally approve them, it is almost impossible that a document would exist wherein Rumsfeld admits to knowledge that the techniques were illegal. Even if such a document did exist, there is simply no way the government would ever release it.
Frankly, the gross hyperbole that has surrounded allegations of “torture” from many in the anti-war movement also makes me suspicious about the substance of all “torture” allegations on spec. But even if I am wrong here and the foaming-at-the-mouth hysteria on the subject turns out to have been justified, I don’t think there will be any way to tie Rumsfeld to it personally.
You will note I have studiously avoided the word “torture,” precisely to avoid getting drawn into that game. The question is not whether Rumsfeld knew his orders constituted torture, but whether he knew they were illegal. Bashing a blindfolded man’s body into a wall to get him to confess might, in sufficiently contorted legalese, be held not to constitute torture, but that does not necessarily make it legal, or reasonable to assume that it was.
There’s no question that Rumsfeld personally approved lists of Guantanamo interrogation techniques, and in at least one case approved the techniques subject to his objections that they were not harsh enough. You can see the document with your own eyes here: http://www.defense.gov/news/Jun2004/d20040622doc5.pdf. Of course, that does not prove that Rumsfeld approved the techniques used on Ertel and Vance, but certainly where a document exists for Guantanamo, another may exist for Camp Cropper, or Iraq generally. I just think, after what they’ve been through, they deserve the chance to find out.
Generally, a jury gets to decide what a reasonable person would know or do. If the plaintiffs can prove Rumsfeld knew about and approved the orders (which may indeed be a tall task), they will not need to get his confession that he knew that they were illegal; the jury will decide whether a reasonable person should have known that you can’t legally treat prisoners this way.
That concludes my closing statement; you may have the last rebuttal, but I need to move on. I thank you for an exceptionally intelligent and civil conversation.
But they would only be illegal if they constituted torture. I don’t see how it is possible to avoid that issue. The allegations is that the techniques used violate the U.S. enabling statute that implements the Convention Against Torture. The question of whether the techniques used were “torture” is central to the question of their illegality. And, I suspect more importantly for the plaintiffs and/or their financial backers, the word “torture” is central to the sought-for political impact.