Lawsuit against Rumsfeld planned

WASHINGTON — The debate over abuses in U.S. military prisons in Iraq and Afghanistan flared again Friday, with nine former detainees seeking the right to sue outgoing Defense Secretary Donald Rumsfeld and three senior Army leaders for alleged torture.

At a hearing in U.S. District Court, lawyers for the former detainees, Iraqi and Afghan civilians, said Rumsfeld and the officers violated U.S. and international law and should be held personally responsible for the abuse they suffered.

The unusual suit is believed to be the first to try to hold U.S. officials accountable for the prison scandal, revelations about which triggered worldwide outcry and forced an overhaul of U.S. interrogation rules.

U.S. District Judge Thomas Hogan indicated he was sympathetic to the plight of the alleged victims but questioned whether they had the right under the U.S. Constitution to sue.

"It's unfortunate, to say the least, that there has to be an argument that U.S. military officials tortured citizens of another country," Hogan said. "That being said, there is substantial difficulty in recognizing claims of noncitizens held in other countries."

The former prisoners alleged in the suit that they were beaten to the point of unconsciousness, mutilated, stabbed, urinated on, endured mock executions and other abuses. They were among the thousands of prisoners held by the U.S. military at Abu Ghraib and other locations in Iraq and Afghanistan, including detention facilities in Kandahar and Bagram.

They asked the court to award unspecified monetary damages and to declare that their treatment was illegal.

Government lawyers argued the suit should be dismissed because Rumsfeld, who gave his farewell speech to Pentagon employees Friday, is immune from being personally sued because he was acting within the course of his official duties.

The lawyers also said the suit would expand the rights of citizens of foreign countries to file lawsuits in U.S. courts far beyond what the U.S. Supreme Court has allowed to date.

The judge cited the case of Johnson v. Eisentrager, decided by the Supreme Court in 1950, which held that enemy aliens had no rights under the U.S. Constitution to challenge their detention by military authorities in civilian court when they were being held outside sovereign U.S. soil.

"Given Eisentrager, I don't see how the Fifth Amendment extends to these individuals," Hogan said, referring to the Constitution's right to due process in an exchange with Lucas Guttentag, lead counsel in the lawsuit and a lawyer for the American Civil Liberties Union.

Hogan said he was concerned that foreigners would then be able to file all kinds of lawsuits. "Where does it stop?" he asked.

Guttentag responded that the case was unusual because the United States has an unequivocal prohibition against torture and because of the extensive paper trail that shows Rumsfeld and the senior Army officials knew or should have known their policies were leading to torture.

He also said U.S. officials should be held responsible because Iraqi law was suspended after the U.S.-led invasion. If officials cannot be held responsible under U.S. law for their actions, the detainees are left without any legal recourse.

"You have a rights-free zone," Guttentag said. "There is nothing that applies."