Following last Friday's post on the two separate torture civil cases former Defense Secretary Donald Rumsfeld is facing, a third case involving two more American citizens working for an Iraqi contractor who claim they were tortured while detained in Iraq was given the go-ahead by a federal judge. That makes three cases in which Americans -- not foreigners, who conservatives erroneously argue aren't entitled to constitutional protections -- are suing former Bush officials over the torture policies approved by the previous administration. Two of the three have been allowed to go forward, the third, filed by Jose Padilla, who was convicted of terrorism conspiracy charges was dismissed by a judge and is being appealed by the ACLU.
As Josh Gerstein reports, Rumsfeld's attorneys continue to argue that Americans tortured by their own government aren't entitled to a remedy unless Congress explicitly says so:
"Today’s decision by the Seventh Circuit Court of Appeals is a blow to the U.S. military," attorney David Rivkin said. "According to two judges on the court, the judicial branch is best-suited to decide how to handle detainees captured and held in foreign war zones....Having judges second-guess the decisions made by the armed forces halfway around the world is no way to wage a war. It saps the effectiveness of the military, puts American soldiers at risk, and shackles federal officials who have a constitutional duty to protect America."
I don't have high hopes for these cases -- there are just too many ways for them to be stopped, either through invocation of the state-secrets doctrine or any number of possible legal cop-outs from judges deferential to executive power, from qualified immunity to deciding that the courts simply shouldn't be involved in these kinds of decisions.
Rumsfeld's staff and lawyers have referred to the civil suits as "lawfare." In their last brief filed in the case involving Jose Padilla, ACLU attorneys responded to this charge directly, writing that "defendants disparage as “lawfare” a United States citizen’s attempt to enforce constitutional prohibitions against arbitrary detention and torture. But there is a pot-and-kettle problem here: As the complaint alleges, it was "defendants who enlisted unscrupulous lawyers to manipulate the law by crafting legal memoranda that would immunize them for conduct that had long been deemed criminal by the United States."