ACLU and Human Rights First Express Disappointment at Dismissal of Rumsfeld Torture Case

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NEW YORK - A federal judge today dismissed a case brought by nine Iraqi and Afghan former detainees for the torture they suffered in U.S. military custody against former Defense Secretary Donald H. Rumsfeld. The suit charged that he was responsible for policies of torture and abuse. All nine were released from custody without any charges against them. The case was brought in March 2005 by the American Civil Liberties Union and Human Rights First on behalf of the former detainees.

"We are deeply disappointed in today's decision," said ACLU attorney Lucas Guttentag, lead counsel on the case. "Despite recognizing that torture is categorically prohibited and that the treatment of our plaintiffs 'constitutes an indictment of the humanity with which the United States treats its detainees,' the court ruled that innocent civilians tortured by the United States cannot seek recourse in the federal courts to hold responsible officials legally liable. We believe that the law and Constitution require more, and that the former Secretary of Defense must be held accountable for his policies that led to this abuse."

In his ruling, Chief Judge Thomas A. Hogan of the Federal District Court for the District of Columbia described this case as "lamentable" and "appalling." He noted that "the facts alleged in the complaint stand as an indictment of the humanity with which the United States treats its detainees." Nonetheless, he concluded that the plaintiffs could not invoke rights under the Constitution or international law against former Secretary Rumsfeld and other military officers. The ruling concluded that constitutional protections did not apply to Iraqi and Afghan nationals in U.S. custody in those countries and that the U.S. officials were immune from lawsuits stemming from actions taken "within the scope of their official duties."

"The right to be free from torture is fundamental under U.S. and international law, and it should not be the case that victims like our clients have no recourse in the U.S. courts," said Hina Shamsi, deputy director of Human Rights First's Law and Security program. "This ruling leaves a gap in the law, which the judge recognized, on accountability for torture."

The decision details the abuse suffered by the plaintiffs in U.S. custody, including severe and repeated beatings, cutting with knives, sexual humiliation and assault, mock executions, death threats, and restraint in contorted and excruciating positions.

The ACLU and Human Rights First had argued that the 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, Secretary Rumsfeld and the other defendants were repeatedly notified of abuse and torture at detention facilities in Iraq and Afghanistan by military reports, the International Committee of the Red Cross and other reports and complaints by human rights organizations.

The groups further charged that Secretary Rumsfeld personally approved brutal and illegal interrogation techniques in December 2002. Those techniques included the use of "stress positions," the removal of clothing, the use of dogs, and isolation and sensory deprivation.

"I was confident that the American people would stand with me for justice, and I am very disappointed," said Thahe Sabbar, one of the plaintiffs in the case.

Retired military officers and military legal experts along with international law scholars filed legal briefs in support of the lawsuit. According to the military law experts, "It was the essence of Secretary Rumsfeld and other defendants' scope of employment to educate and train those within their command responsibility to adhere to domestic and international standards and to do everything within their power to prevent and punish deviations from them."

Legal papers filed in the case, as well as information on the former detainees, are online at www.aclu.org/rumsfeld and www.humanrightsfirst.org/us_law/etn/lawsuit/index.asp