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Newsworthy Postings
Wednesday, March 02, 2005
By Jim Betker
March 2, 2005
According to a joint press release issued yesterday by Human Rights First and the ACLU, a federal lawsuit has been filed in the Northern District of Illinois charging that U.S. Secretary of Defense Donald Rumsfeld "authorized an abandonment of our nation’s inviolable and deep-rooted prohibition against torture or other cruel, inhuman or degrading treatment or punishment of detainees in U.S. military custody.”
The two groups are joined as co-counsel in the lawsuit by Rear Admiral John D. Hutson (Ret. USN), former Judge Advocate General of the Navy; Brigadier General James Cullen (Ret. USA), former Chief Judge (IMA) of the U.S. Army Court of Criminal Appeals; and Bill Lann Lee, Chair of the Human Rights Practice Group at Lieff, Cabraser, Heimann & Bernstein, LLP and former Assistant Attorney General for Civil Rights at the Department of Justice. Admiral Hutson and General Cullen are “of counsel” to Human Rights First.
The plaintiffs are eight men who were subject to torture and abuse at the hands of U.S. forces under Rumsfelds command. The parties are seeking a court order declaring that Rumsfeld's actions violated the U.S. Constitution, federal statutes and international law. The lawsuit also seeks compensatory damages for the harms suffered as a result of torture and other abuse.
The men were held in U.S. detention facilities in Iraq and Afghanistan. While in detention the men were subjected to torture and other cruel and degrading treatment. None were ever charged with a crime and all have been released.
"Human Rights First has vigorously campaigned for and independent commission to investigate U.S. policies that have led to torture and cruel treatment of detainees. These calls have gone unanswered by the administration and Congress, and today many of the illegal polices remain in place,” said Michael Posner, Executive Director of Human Rights First. “We believed the United States could correct its policy without resort to the courts. In bringing this action today, we reluctantly conclude that we were wrong,” Posner said.
Posner further castigates Rumsfeld by upholding the principle of U.S. jurisprudence that no one is above the law when he said the "lawsuit presents the opportunity to make clear that the United States is still committed to the rule of law, and that every American, no matter how high-ranking, is bound to comply with those rules."
The joint press release also states that "the ACLU has also filed three similar complaints against Colonel Thomas Pappas, Brigadier General Janis Karpinski and Lt. General Ricardo Sanchez on behalf of the torture victims who were detained in Iraq. These three additional complaints were filed in federal courts in Connecticut, South Carolina and Texas, respectively, due to court requirements regarding jurisdiction."
In a scathing indictment of Rumsfeld, Admiral Hutson, the former Navy JAG has stated, “One of the greatest strengths of the U.S. military throughout our history has been strong civilian leadership at the top of the chain of command. Unfortunately, Secretary Rumsfeld has failed to live up to that tradition. In the end, that imperils our troops and undermines the war effort. It is critical that we return to another military tradition: accountability.”
In documents obtained in a Freedom of Information Act lawsuit, the ACLU uncovered evidence that indicate the FBI began to complain about the interrogation techniques used by the military on detainees in Guantánamo as early as 2002, techniques that spread to Afghanistan and Iraq.
Anthony D. Romero, Executive Director of the ACLU said, “The effects of Rumsfeld’s policies have been devastating both to America’s international reputation as a beacon of freedom and democracy, and to the hundreds, even thousands of individuals who have suffered at the hands of U.S. forces.”
The legal basis of the suit is grounded in the Fifth Amendment due process clause, and in the Fifth and Eighth Amendment prohibitions on cruel and unusual punishment.
Both constitutional bases apply to prohibit any person acting under color of U.S. law from engaging in or allowing torture and abuse; or other cruel, inhuman or degrading treatment or punishment that "shocks the conscience," on any person in U.S. custody or control.
The bases in international law is in the Third and Fourth Geneva Conventions, including Article 3 (relative to the Treatment of Prisoners of War) which specifically prohibit the torture and other cruel, inhuman or degrading treatment of detainees.
Also in the "command responsibility doctrine" in which the core principles of the Law of Nations recognize fundamental human rights principles, including prohibition against torture. This doctrine imposes a liability on commanding officers for the act of their subordinates and has been recognized since 1946 when Japanese General Yamashita was convicted for abuses by his troops.
And in the United Nations Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment (Dec. 10, 1984) as a prohibition against torture is a "specific, universal, and obligatory" norm, from which no derogation is allowed.
Now that Rumsfeld and his subordinates have been taken to task for thier parts in the torture scandal, we must ask why those who are responsible for the formulation of this policy have not been brought to justice.
It has alredy been definitively shown that the administration officials responsible for formulating the torture policies are Jay S. Bybee, formerly of the Office of Legal Counsel to Presidential Counsel Alberto Gonzales, and Alberto Gonzales himself.
Also, Bybee's deputy John Yoo, who is one of the authors of the USA Patriot act and a tenured Professor of Law at the University of California at Berkeley Boalt Hall Law School had a hand in formulating an earlier memo in January 2002 and was apparently the co-author with Bybee in the memo the following August.
Additionally, Michael Chertoff in his former capacity as Assistant Attorney General is said to have advised the CIA and Department of Defense on the use of torture as long as it conformed to the content of Bybee's memo.
Of these four individuals, three have been rewarded with higher positions in government even though their roles in formulating the torture policies have come out.
Bybee remains on the federal 9th Circuit Court of Appeals (Las Vegas) and Gonzales has been confirmed as the U.S. Attorney General. And Chertoff has also been confirmed as the new head of the Department of Homeland Security. The Bybee memo is also clear evidence of war crimes.
Just after Gonzales testified before the Senate Judiciary Committee on his confirmation hearing to the top spot at the Justice Department, Admiral Hutson of JAG and Harold Koh, a former Assistant Secretary for Human Rights, for the Office of Legal Counsel during the Reagan administration both testified before the committee.
Koh is now Dean of Yale Law School and his testimony about the Bybee memo pulled no punches when he said, "in my professional opinion as a law professor and a law dean, the Bybee memorandum is perhaps the most clearly legally erroneous opinion I have ever read."
John Yoo is the only one not to move up to a higher government position, but his position at Boalt Hall in undoubtedly better than his former position as Bybee's deputy.
Yoo was the object a protest at Boalt Hall by a human rights activist group, Not In Our Name on June 26, 2004. Yoo was described by one of the group's supporters as a "legal pimp for the chickenhawk cabal" of the Bush administration.
The main questions still to be resolved, is will George W. Bush take the ultimate responsibility for the failures of his appointees and their subordinates?
And will Congress uphold its legal responsibility to the rule of law by moving to impeach all of these appointees and even Bush himself for these "High Crimes and Misdemeanors?"
Another question that comes to mind is unless and until those responsible for the formulation and implementation of these policies of torture and war crimes at all levels are brought to justice, what are the possibilities that these type of policies may be implemented against any and all political opponents of the Bush regime?
In a domestic legal arena that is looking as though it is no longer bound to the rule of law with corruption running rampant in the courts and prosecutorial misconduct at new highs, what are the implications of the careless attitudes of the people in allowing these crimes by our public servants to go unpunished?
This should be the new call to arms, for what are our public servants if they fail to serve us, but rather, only serve their own interests and enrichment?
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