Donald Rumsfeld Torture Lawsuit Fizzles, Again

First Posted: 01/13/11 01:16 PM Updated: 01/13/11 01:16 PM

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WASHINGTON -- An American Civil Liberties Union lawyer trying to revive a torture lawsuit against former Defense Secretary Donald H. Rumsfeld and three high-ranking Army officers made no headway in a hearing Thursday before a three-member panel of the U.S. Circuit Court of Appeals.

The biggest obstacle facing the ACLU: The full circuit court previously ruled in a similar case that Rumsfeld and others are immune from such suits because they were acting in their capacity as government officials.

Cecillia Wang, an attorney with the ACLU Immigrants' Rights Project, gamely argued that while the court was precluded by that precedent from actually finding in favor of her plaintiffs, it should still rule on the issue of whether their rights were violated.

Unlike an earlier case which involved non-citizens tortured at Guantanamo Bay, Cuba, this case, Ali v. Rumsfeld, was filed on behalf of nine Iraqi and Afghan men subjected to torture and abuse under Rumsfeld's command in Iraq and Afghanistan.

The suit was dismissed in March 2007 by U.S. District Court Judge Thomas A. Hogan, whose ruling nevertheless described the case as "lamentable" and "appalling." Hogan wrote that "the facts alleged in the complaint stand as an indictment of the humanity with which the United States treats its detainees."

Wang pleaded with the three-judge panel to take a stand. She said the court should determine that the defendants, in "setting a policy to encourage and condone torture, and tolerating torture" had clearly violated the Constitution. She lambasted the defendants for "claiming that there are no limits to the executive branch's power."

But the panel's leader, Chief Judge David B. Sentelle, was having none of it. Sentelle repeatedly scolded Wang for asking the court to issue what he termed an "advisory ruling," which he said "is totally out of step with two centuries of Supreme Court jurisprudence."

"You're conceding you can't prevail in the law of this court," said Senior Circuit Judge Harry T. Edwards. "Let's say we say you're right, do you prevail? If we do what you ask, can your clients prevail?"

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Wang had to admit: "No."

"If we decide 'OK, there is a right,' but we can't do anything about it, then why have we ruled?" Sentelle asked. "Aren't we answering a moot question?"

Circuit Judge Karen LeCraft Henderson remained mum.

In case there was any doubt that his mind was already made up, Sentelle told the Justice Department lawyer representing the defendants that he didn't need to bother making oral arguments.

After the hearing, Wang told HuffPost she knew it was a long-shot going in. But, she said, "the government to this day is still arguing that it should have a blank check when it comes to its conduct to non citizens outside the U.S.

"It's vitally important that the federal courts now clearly hold that the Constitution does prohibit the U.S. government from approving torture. There is a dire need for the courts to develop the law, to say what the Constitutional limits are."

Outside the courthouse, about two dozen members of the group Witness Against Torture, more than half of them clad in orange jumpsuits and black hoods, marched back and forth on the sidewalk.

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Dan Froomkin is senior Washington correspondent for the Huffington Post. You can send him an e-mail, bookmark his page; subscribe to his RSS feed, follow him on Twitter, friend him on Facebook, and/or become a fan and get e-mail alerts when he writes.

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WASHINGTON -- An American Civil Liberties Union lawyer trying to revive a torture lawsuit against former Defense Secretary Donald H. Rumsfeld and three high-ranking Army officers made no headway in a ...
WASHINGTON -- An American Civil Liberties Union lawyer trying to revive a torture lawsuit against former Defense Secretary Donald H. Rumsfeld and three high-ranking Army officers made no headway in a ...
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NoHomo   09:19 AM on 1/15/2011
It's funny how you people sympathize with these terrorists for their claims of torture yet you want the very people that were protecting our country demonized and thrown in prison... How patriotic of you all!!!
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Taz Delaney   01:58 PM on 1/14/2011
the new nazis 'just say no' to nuremberg trials. judges aligned with torturers.­.. this nation must be overthrown­, disarmed and demilitari­zed as germany and japan rightly were after WWII. every single person from the NSA, pentagon, executive branches in both bush and obama admins, congressme­n who voted for any of the wars and torture and all the way down to the lowliest soldier who ever tortured anyone or killed a civilian or dropped a bomb or directed a drone-bomb­er... charged, convicted, amends for the remainder of their wicked lives.
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HUFFPOST SUPER USER
Rixar13   10:33 AM on 1/14/2011
"It's vitally important that the federal courts now clearly hold that the Constituti­on does prohibit the U.S. government from approving torture. There is a dire need for the courts to develop the law, to say what the Constituti­onal limits are."

Lead by example not above the law...?
pvbeachbum   08:36 AM on 1/14/2011
instead of wasting everybody'­s time trying to prosecute rumsfeld, they should be going after the banksters who brought chaos and financial ruin to hundreds of thousands of Americans. Now THAT is torture.
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Taz Delaney   02:02 PM on 1/14/2011
makes no sense at all, guy. that we allow corporatis­ts to screw the world is one thing. engaging in the torture of even teenaged boys for years on end... that's another.

btw... in april of 2009, UN estimated that if it didn't worsen, which it has and will continue to do, some 7 million of the world's poorest people, aka mostly africans, would die. though that is a holocaust, it is widely unreported as... who cares about those 3rd-worlde­rs? well, we're coming into our own 3rd world phase rapidly. but none of teh criminals who brought this down on the world or america will ever do a single day in prison for massive crimes against humanity..­. til the food riots break out here... probably in 2012.
lastpost   08:32 AM on 1/14/2011
“Rumsfeld and others are immune from such suits because they were acting in their capacity as government officials”­­.
If only they’d thought of that defense at Nuremberg.

"Let's say we say you're right, do you prevail? If we do what you ask, can your clients prevail?
Wang had to admit: "No."
But then this is about justice, your Honour. Let’s say we all know you’re wrong-head­­ed. Does that give wrong-head­­edness the right to prevail over justice? In one wrong-head it apparently does.
lottakatz   04:11 PM on 1/14/2011
They would be liable if they willfully and knowingly violated the law while performing their official business. That's why they were careful to put in place laws that effectivel­y nullified any constituti­onal protection­.
baybeebluz   08:27 AM on 1/14/2011
Seems like many of the atheists suddenly believe in a higher power.
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XtfrM2   07:44 AM on 1/14/2011
Letting Rumsfeld, Bush, Cheney, and the other crim.inals of the Bush administra­tion go free does inestimabl­e damage to America's reputation as a free, functionin­g democracy. They and their ilk are truly above the laws of the land. In fact they make a mockery of same.
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HUFFPOST SUPER USER
jspkim   05:11 AM on 1/14/2011
OT
but
"WikiLeaks contribute­s $15,000 to suspected US soldier’s defense fund"\
Board member says donation is "vital"
bradleyman­ning 1215 WikiLeaks contribute­s $15,000 to suspected US soldiers defense fund

A legal defense fund for the US soldier suspected of leaking secret US documents to WikiLeaks said Thursday it has received a $15,000 contributi­on from the website"http://www­.rawstory.­com/rs/201­1/01/wikil­eaks-contr­ibutes-150­00-suspect­ed-soldier­s-defense-­fund/
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wxw101   02:12 AM on 1/14/2011
He will be dead, and they will still be trying to prosecute him.
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conservicide   03:25 AM on 1/14/2011
hopefully dead by the cold hand of justice.
baybeebluz   08:24 AM on 1/14/2011
I am surprised you are for the DP.
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HUFFPOST COMMUNITY MODERATOR
jlyn   06:16 AM on 1/14/2011
He won't be able to dodge that final judgment.
scampy123   02:11 AM on 1/14/2011
Tony the phony Blair is facing questions next week regarding his lies about Iraq WMD at the British war inquiry yet Bush and his fellow liars are still to be questioned­..
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European1919   02:32 AM on 1/14/2011
Tony wasn't lying, and he isn't a phoney. He was just following his orders from his friends in the USA.
Ever since Margaret Thatcher Biritish PMs have been finger puppets with the American finger up their pooh-shute­. Apparently it was always the middle finger.
WhatDaBleep   01:48 AM on 1/14/2011
Did anyone really think that there would be a trial?
bushitbrain   01:44 AM on 1/14/2011
Rummy & Chainey, the two surviving cronies of Nixum, are coated with slipperier Teflon than Raygun had, & will never be convicted of their crimes against humanity. Similarly for `W'. Those 4 are the foulest stench the Repugs have ever affiliated themselves with. Can we even believe they were elected as if Watergate never happened ? How easily people forget....
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Slight Return   01:18 AM on 1/14/2011
Figures this 'Papa Oscar Sierra' david b. sentelle was appointed by ronald reagan (BIH).
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breakingpoint   01:17 AM on 1/14/2011
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nomadicus   12:43 AM on 1/14/2011
"Rumsfeld family tie is first victim of war" http://goo­.gl/2nYs8

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