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Protecting Whistleblowers since 1977

Washington Post Editorial Questions Torture Suit Against Rumsfeld

Jesselyn Radack, August 31, 2010

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.

This is a precedent-setting case. These plaintiffs are not the only U.S. citizens to be treated as "enemy combatants." The Government Accountability Project (GAP) represents a client, a U.S. citizen, who was held as an "enemy combatant" for nine months because the government was afraid he could potentially blow the whistle on the strategic relationship the U.S. had developed with a high-level sheik.

District Court Judge Anderson did not allow the suit against Rumsfeld to proceed because he wanted to micro-manage the Executive branch's wartime decision making.  To the contrary, Judge Anderson's eloquent reasoning was solidly grounded where federal courts have the most expertise, in the Constitution:

Decisions by the Secretary of Defense in the context of an ongoing conflict are undoubtedly difficult ones that should not be called into question each time an alleged constitutional violation arises. However, it is equally true and important that American citizens must not be denied the opportunity to challenge genuine mistreatment at the hands of a government official simply because that official is tasked with difficult and extremely important decisions. . . . The thrust of the allegations against Rumsfeld personally is not that he had to make a split-second decision to use torture in a particular moment of unprecedented emergency. To the contrary, plaintiffs allege that Rumsfeld approved the use of torture for general purposes as an interrogation technique and did so with ample time to consider the consequences of his actions.


(emphasis added)

Well put, Judge Anderson. The Secretary of Defense's decisions do not trump the Constitution.

PS: There’s another important article in today's Washington Post reporting a lawsuit filed by the ACLU and Center for Constitutional Rights on behalf of the father of a U.S. citizen on the CIA's "authorized kill" (read: assassination) list.  The government's argument is essentially, "you just need to trust us to get these assassinations right."  Right, that’s worked really well in the past for everyone from Brandon Mayfield to two-thirds of the Guantanamo detainees where the government got it wrong.

Jesselyn Radack is Homeland Security & Human Rights Director for the Government Accountability Project, the nation's leading whistleblower advocacy organization. This post originally appeared in herDaily Kos column.