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WaPo's editorial board suggests today that courts should abandon the one iota of accountability for cabinet-level Bush-era officials who authorized torture. The editorial questions a court's decision that American contractors and whistleblowers Donald Vance and Nathan Ertel are permitted to sue former Defense Secretary Donald Rumsfeld.
The lawsuit is based on claims that while Vance and Ertel were working as contractors in Iraq, the U.S. military kidnapped them, detained them without process, and tortured them using the "enhanced interrogation techniques" that Rumsfeld personally approved. Usually cabinet-level officials have immunity from lawsuits, but, in August, the fairly-conservative Seventh Circuit Court of Appeals found that the alleged conduct - the kidnapping and torture of American citizens - was so egregious that suit against Rumsfeld could proceed.
While WaPo's editorial acknowledges that "it may be ultimately wrong" to bar Vance and Ertel from seeking justice in the courts, WaPo accuses the Seventh Circuit of overstepping its authority:
But the court overreaches by creating expansive new rights that are not supported by precedent and that would best be weighed by Congress.
WaPo suggests that Vance and Ertel should have "pressed their claims through the military justice system," and if that failed, then Congress should provide a remedy. Congress appears too busy fighting about how to keep the U.S. from defaulting on trillions in debt and bickering over when Obama will give his next speech. WaPo's suggestions would not only mean no justice for Vance and Ertel, but also - yet again - no accountability for the high-level officials who orchestrated torture policies.
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GAP, POGO, SPJ Filed Amicus in Support of Citizen Whistleblowers Who Were Contractors in Iraq
(Washington, D.C.) -- Earlier today, the United States Court of Appeals, Seventh Circuit, in the case Donald Vance and Nathan Ertel v. Donald Rumsfeld and The United States of America, ruled that two American citizens (both contractors who were wrongfully detained and subjected to "enhanced interrogation techniques" by American military officers) can continue with their lawsuit holding former Secretary of Defense Donald Rumsfeld personally responsible for their alleged torture.
The Court agreed with several rulings of a lower court regarding the case. Specifically, the Seventh Circuit found that Vance and Ertel "alleged in sufficient detail facts supporting Secretary Rumsfeld's personal responsibility for the alleged torture," "that Secretary Rumsfeld is not entitled to qualified immunity on the pleadings," and that "a Bivens remedy is available for the alleged torture of civilian U.S. citizens by U.S. military personnel in a war zone." (Bivens remedies allow for citizens to sue for damages for constitutional violations committed by federal agents.)
The full opinion by the Seventh Circuit can be read here.
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On Tuesday, the United States District Court for the District of Columbia upheld the validity of a constitutional rights claim against former Secretary of Defense Donald Rumsfeld for his role in the torturing and illegal imprisonment of a U.S. citizen who was working as a translator in Iraq.
This was a good decision. Released publicly yesterday morning, the case, John Doe v. Donald Rumsfeld, et al, (No. 08-cv-1902 CKK), is available here.
Out of many suits brought against Rumsfeld over the torture of detainees in Iraq, this is only the second case that has been allowed to proceed. GAP is co-counsel in this suit, along with Chicago-based civil rights law firm Loevy & Loevy.
The other case that is proceeding against Rumsfled, by the way? Donald Vance and Nathan Ertel v. Donald Rumsfeld, et al (06 C 6964). Those in the whistleblower community might remember Vance as the winner of the prestigious Ridenhour Truth-Telling Prize back in 2007, which is really one of the highest national honors a whistleblower can receive. Last year, a federal court in Chicago held in Vance that two American citizens who were also tortured while detained by U.S. forces in Iraq could bring constitutional claims against Rumsfeld. That decision is currently on appeal to the United States Court of Appeals for the Seventh Circuit. A decision is expected soon.
Three months ago, journalist Michael Isikoff noted the disturbing "Double Standard" in White House Leak Inquiries. But now it's not just the Executive Branch. Josh Gerstein of Politico just published an article on how a judge ruled that the Justice Department can keep secret names of its own lawyers who leak classified information.
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It is indisputable that the Obama, via the Holder Justice Department, has brought more "leak" prosecutions than any presidential Administration, ever.
To add hypocrisy to the injury of selective and malicious prosecutions of Shamai Liebowitz, Thomas Drake, Stephen Kim, and Jeffrey Sterling -- the Justice Department's own attorneys are immune from the "war on leaks."
U.S. District Court Judge Maxine Chesney ruled last week that the Justice Department does not have to disclose the identities of two lawyers who were found by the Office of Professional Responsibility (OPR) to have intentionally disclosed classified information to the media in 1996.
This is rank hypocrisy and the putrid stench is overwhelming.
In August 2009, the Justice Department announced that it would not prosecute CIA employees who had acted in good faith.
Now, slamming the door on accountability once again, CIA officials get a pass -- this time for destroying dozens of videotapes depicting the waterboarding of Abu Zubaydah and Abd al-Rahim al-Nashri, in secret CIA prisons. The CIA withheld the fact that the tapes existed from both the federal courts and the 9/11 Commission, which had asked the CIA for records of the interrogations.
Destroying those videotapes was such a brazen and blatant cover-up that even Bush was forced to launch a special investigation after the episode became public.
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This is the icing on the cake of unaccountable government.
In his new memoir, President Bush writes:
I have been troubled by the blowback against the intelligence community and Justice Department for their role in the surveillance and interrogation programs. . . Our intelligence officers carried out their orders with skill and courage, and they deserve our gratitude for protecting our nation. Legal officials in my administration did their best to resolve complex issues in a time of extraordinary danger to our country.
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Former Attorney General John Ashcroft
In solid accountability news, the Supreme Court agreed yesterday
to hear a case to determine whether former Attorney General John Ashcroft can be held personally liable for his actions (while in that position) in overseeing the arrest of a “U.S. citizen who claims he was illegally detained and treated as a terrorist.”
The case revolves around actions the government took in 2003 against an muslim-American named Abdullah al-Kidd, who was arrested trying to board a plane to Saudi Arabia. From the Washington Post
He was held for 15 nights in three states under the federal material-witness statute, which allows prosecutors to take custody of key witnesses to ensure that they testify at trial. But al-Kidd alleges that was simply a pretext for a larger plan approved by Ashcroft to sweep up Muslim men the government could not prove had any ties to terrorism.
The government had convinced a federal judge to issue a warrant for al-Kidd's arrest by saying he was necessary to the investigation of Sami Omar al-Hussayen, who was eventually indicted on charges of supporting terrorism.
Of course, al-Kidd wasn’t charged with anything at all. Nor was he ever called to testify against al-Hussayen. Who, as it turns out, was “acquitted of the most serious charges against him.” (WaPo)
Oh, and there’s more. al-Kidd had actually been cooperating with the FBI before this, and the FBI ‘misinformed’ the judge about the circumstances of the case – information which led to the judge’s ordering of the arrest itself. From the LA Times):
[al-Kidd] had cooperated with the FBI after the Sept. 11 attacks and answered questions about another Muslim man in Idaho who was under investigation in connection with his website.
Several months had elapsed since Kidd had heard from the FBI, but when he bought a round-trip ticket to travel to Saudi Arabia, where he had a scholarship to study, the FBI moved to have him arrested.
An FBI agent wrongly told a magistrate that Kidd had bought a one-way, first-class ticket. The magistrate ordered Kidd arrested and held as a witness. A few days later, FBI Director Robert S. Mueller III testified in Congress and mentioned Kidd's arrest as one of the bureau's successes.
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The Washington Post has an editorial today, U.S. citizens who say they were tortured get their day in court, questioning a federal District Court decision, which allowed a torture lawsuit to proceed against high level U.S. officials, including former Secretary of Defense Donald "I stand for 8-10 hours a day. Why is standing limited to four hours?" Rumsfeld.
While the Washington Post says, “Judges should not be in the business of second-guessing or micromanaging the executive's battlefield decisions.”
I submit that the Washington Post should not be in the business of second-guessing judicial decisions.
The Post implies there are other avenues available to hold high-level officials accountable, and the plaintiffs “should have availed themselves of processes within the military justice system to ferret out and punish miscreants.”
Prosecuting the Charles Graner's and Lynndie England’s of the torture universe is a band-aid on a bullet wound. The real responsibility lies at the top of the heap with the lawyers and officials who conceived the policies, none of whom have been held accountable for the use of coercive interrogation techniques (a.k.a. torture).
While it's not clear from the editorial, the American citizen plaintiffs were not taken captive, blindfolded, strip-searched, held incommunicado almost entirely in solitary confinement often with blaring music, denied food and water, and subjected to sensory deprivation and harsh interrogation tactics for their own protection. They were taken captive because the powers that be feared the plaintiffs' potential whistleblowing.
The plaintiffs' kidnapping had nothing had nothing to do with the battlefield. They were kidnapped in 2006, three years after the invasion and occupation of Iraq. They were held at Camp Cropper, not in some temporary battlefield tent.