Jan 13, 2011
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?"
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
Dan Froomkin is a political journalist and founder and editor of Press Watch, a site focusing on coverage of U.S. politics and media. Previously, Froomkin covered politics for the Washington Post, the Huffington Post, and The Intercept.
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?"
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.
Dan Froomkin
Dan Froomkin is a political journalist and founder and editor of Press Watch, a site focusing on coverage of U.S. politics and media. Previously, Froomkin covered politics for the Washington Post, the Huffington Post, and The Intercept.
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?"
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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