Judge Rules Government Free to Torture [Updated]

Crossposted at NION and Daily Kos

U.S. District Judge Thomas F. Hogan ruled yesterday that Donald Rumsfeld, former (and reviled) Defense Secretary for George W. Bush, can't be held responsible for the torture he approved, as it was supposedly part of his government job. Three military commanders were also targets in the case and cleared by the court.

Logan began his opinion with the statement, "This is a lamentable case."

It's more than that. It's a goddamn criminal decision that allows the U.S. government to torture foreign nationals abroad at will, with no danger of ever being held accountable.

The case was initiated via a suit by the ACLU and Human Rights First. According to the New York Sun/AP article:

The lawsuit contends the prisoners were beaten, suspended upside down from the ceiling by chains, urinated on, shocked, sexually humiliated, burned, locked inside boxes, and subjected to mock executions.

Jesselyn Radack has posted an impressive legal deconstruction of Judge Hogan's ruling over at Daily Kos: APPEAL: Rumsfeld Cleared in Torture Lawsuit.

A case colloquially called Bivens [link added] authorized personal liability lawsuits against government employees for constitutional tort violations (wrongs that violate the Constitution). Here, for example, it sounds like there were Eighth Amendment excessive force violations, Fifth Amendment due process violations and Sixth Amendment right to counsel violations....

You are only entitled to qualified immunity if there's no violation of clearly established law.

Here, there were violations of clearly established law. Off the top of my head, I can think of domestic legislation (the 1994 federal anti-torture statute, the War Crimes Act of 1996, and the Military Extraterritorial Jurisdiction Act of 2000); human rignts law and treaties (the International Covenant on Civil and Political Rights, the Convention Against Torture, the Universal Declaration of Human Rights, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, etc.); and international law and the Geneva Conventions.

Update 1:20pm PDT

Given the controversy [in the Daily Kos comment thread on this story], which interested readers should pursue there, over the legal jurisdiction for this case, i.e., whether the foreign plaintiffs had a right to bring this tort complaint against Rumsfeld, et al., I reprint my part of my comment answer here:

In their legal rationale posting, ACLU, etc. note:

Torture and Cruel, Inhuman or Degrading Treatment in Violation of the Law of Nations.

Every civilized country in the world recognizes fundamental human rights principles, including the prohibition against torture. These core principles are known as the "law of nations," and they are embodied in many documents that the United States has signed and ratified, including the United Nations Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment (Dec. 10, 1984). The prohibition against torture is a "specific, universal, and obligatory" norm, from which no derogation is allowed.

Is their rationale that victims of torture have a special standing because of torture laws?

In the portion of the actual suit that cites jurisdiction and venue, plaintiff's attorneys cite 28 U.S.C. § 1350 (the Alien Tort Statute). The latter states:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

I don't know, but it looks to my layman's eyes that the aliens involved have a right to make a civil action when there is a violation in the law or of a treaty, which brings us back to the Bivens issue re government employee culpability.