Frivolous lawsuit by the increasingly frivolous ACLU
The QandO Blog
You know, there is certainly a need for watchdog organizations such as the ACLU, but it seems that lately the ACLU has concentrated more on marginal cases likely to produce publicity than boring cases involving the rights of US citizens which might be of some real legal importance (like eminant domain).
Case in point is the suit they filed today in Illinois against Donald Rumsfeld on behalf of 8 Iraqi men.
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"Rumsfeld bears direct responsibility" because he "personally signed off" on policies guiding prisoner treatment, said American Civil Liberties Union (search) Executive Director Anthony Romero.
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Personally signed off? It'll be interesting to see them prove that allegation.
Reading about the case on the ACLU website, I came across bios of the 8 men indicated in the lawsuit.
One of them is "Ali H." (Ali uses a pseudonym, per the ACLU, because he fears for his life) who was allegedly abused by US troops. A short excerpt from his ACLU profile:
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During his arrest and subsequent detention, Ali suffered excruciating pain and was subjected to degrading and inhuman treatment. Soldiers shot Ali in the neck and back and threw him to the ground before arresting him. Military personnel refused to provide medical care for Ali for hours after the arrest, even though he was bleeding profusely from two gunshot wounds. The bullets were eventually removed from Ali's neck and back in a brutal fashion and without anesthetic. He was then denied food, water and pain medication for almost two days after he was shot.
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They shot him in the neck and back, threw him to the ground and left him to bleed "profusely" from the gunshot wounds.
Luckily he didn't bleed out from that "profuse bleeding", huh? You have to wonder how Ali defines "profuse".
You may also wonder why Ali was shot in the first place, but that's not covered in his bio. Was there an AK 47 in the vicinity of Ali's profusely bleeding neck?
So anyway, he's shot and bleeding "profusely". What do the Americans do? Refuse him medical care.
Does that ring true to anyone who's spent a second around US military medical personnel? And then they cut out the bullets without anesthesia? Wow ... there you go. That happens every single day, I'm sure, especially in the field.
Anyway I don't want to get too wrapped up in the Abu Ghraib 8. I simply wanted to point to that part of Ali's story as not really ringing true to my experience. At least that part isn't credible to me. Additionally it should be noted that Ali H. is not so scared for his life that he wouldn't become a party to a lawsuit which would be a likely monetary windfall for him if settled.
What does the ACLU claim is the basis for this suit? Well read 'em and ponder:
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Knew that torture and abuse were taking place and did nothing to stop it. Through his actions and failures to act, Secretary Rumsfeld expressly and tacitly authorized his subordinates’ unlawful conduct and failed to stop the abuse after he knew of it.
· Along with his subordinates, Secretary Rumsfeld authorized, ratified and failed to stop the unlawful treatment of detainees in U.S. custody. Secretary Rumsfeld had the power to formulate policies relating to the treatment and interrogation of detainees in Iraq and Afghanistan, was directly and personally involved in setting interrogation rules, and exercised his power to allow illegal practices, namely, the torture or other cruel, inhuman or degrading treatment of detainees in U.S. custody.
· Exercised effective command over individuals who intentionally and knowingly subjected detainees to cruel, inhuman or degrading treatment.
· Knew that his subordinates were torturing detainees in U.S. custody and violated his duty as a commander to punish the perpetrators or otherwise to prevent further acts of torture.
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Key claims by the ACLU? Obviously that Rumsfeld knew it was going on and failed to stop it. In fact,per them, had authorized it.
Of course the Senate hearings into the matter found no such thing to be true. While there was indeed abuse and a failure of leadership, it occurred without the knowledge of the Sec Def and at a leadership level much lower than his.
How the ACLU plans to prove these charges, if the suit is ever allowed to go to court, will be quite instructive.
The ACLU also cites the following as its legal basis for the suit:
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Violation of Fifth Amendment Due Process Clause. The Fifth Amendment’s Due Process Clause prohibits any person acting under color of U.S. law from engaging in or allowing torture, abuse or other treatment that "shocks the conscience."
Violation of Fifth and Eighth Amendment Prohibitions on Cruel and Unusual Punishment. The Fifth and Eighth Amendments to the U.S. Constitution prohibit any person acting under color of U.S. law from engaging in or allowing torture; or other cruel, inhuman or degrading treatment or punishment; or any other treatment that constitutes deprivation of basic human needs, such as food and reasonable safety, and the unnecessary and wanton infliction of pain on any person in U.S. custody or control.
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.
Command Responsibility. The law of nations also imposes liability on commanding officers for the acts of their subordinates. A commanding officer is liable for the acts of his subordinates if the commanding officer knows of a substantial likelihood that torture or other cruel, inhuman or degrading treatment will result from the execution of an order from the commander. This doctrine of "command responsibility" has been recognized by the U.S. Supreme Court since In re Yamashita, 327 U.S. 1 (1946), a post-World War II case in which a Japanese general was convicted for abuses by his troops.
Violation of the Geneva Conventions. The Third and Fourth Geneva Conventions, including Article 3 (relative to the Treatment of Prisoners of War) specifically prohibit the torture and other cruel, inhuman or degrading treatment of detainees in U.S. custody. The United States has signed and ratified these Conventions, and failure to adhere to these provisions constitutes a direct and enforceable treaty violation as well as a violation of the law of nations.
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I'm not a legal scholar (nor do I play one on TV) so I'll resist remarking about the legal aspects of this case, but as a lay person I'm struck by the use of US Constitutional references. Are they appropriate? I'm not sure the thrust of the ACLU's use is valid. I could be wrong, but it seems inappropriate to me.
Secondly, while no one argues that what happened at Abu Ghraib was wrong, it seems unlikely, given the results of the Taguba investigation and the Senate hearings on the matter, that any of what the ACLU lists as its legal basis is provable against the Sec Def.
How does the ACLU plan on specifically and directly linking Rumsfeld to purposeful violation of all those treaties and conventions?
I simply don't see it happening. Again, not being a lawyer I could be wrong, but everything I've seen and read about this subject pretty much clears Rumsfeld of direct responsibility. As far as my legally unschooled eye can tell, there's no real case here.
So that leaves me to wonder why the suit was filed in the first place. Publicity? An attempt to embarass the administration? The ACLU can't believe it is ever going to win a dime for these 8. Its an absurd case on its face.
While I feel for the 8 'victims', assuming their stories are true and they were actually vicitms of US abuse, I have to tell you that this seems to be a case of exploitation for political gain. They are being used, it would seem, in a rather transparent attempt embarrass the administration again over Abu Ghraib.
Hopefully the court will see through this and quickly toss this absurdity out as frivolous so as not to waste the taxpayer's money on the ACLU's latest legal fantasy and publicity gathering venture.
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