Secretary Rumsfeld’s Court Filing Argues Immunity for Responsibility from Torture and Abuse

On March 6, 2006, Secretary of Defense Donald Rumsfeld filed a long-anticipated motion to dismiss the case brought by the ACLU and Human Rights First on behalf of victims of torture in U.S. custody.  The lawsuit, the first federal court suit to name a top U.S. official in the ongoing torture scandal in both Iraq and Afghanistan, was originally filed in March 2005 on behalf of Iraqi and Afghan citizens, who were tortured and abused at the hands of U.S. forces under Secretary Rumsfeld's command.  The suit charges the Secretary and other senior commanders with legal responsibility for acts of torture and abuse against the Iraqi and Afghan torture victims in the case.

Following the filing, ACLU and Human Rights First attorneys rejected the position put forward by Secretary Rumsfeld in his legal papers, which assert that Secretary Rumsfeld is immune from responsibility for acts of torture and abuse committed against civilians detained by the U.S. military at Abu Ghraib and elsewhere in Iraq and Afghanistan under his watch.

“Secretary Rumsfeld makes the chilling argument that a government official who authorizes or condones torture is entirely immune from suit and cannot be held accountable for his actions.  We believe that the courts must reject that contention to protect the rule of law and the principles of the Constitution,” said Lucas Guttentag, lead counsel in the lawsuit and director of the ACLU’s Immigrants’ Rights Project.

“Particularly in light of reports documenting how senior command and civilian leadership have escaped accountability for the gross abuse of detainees in U.S. custody, the Secretary’s position that ordering torture was ‘within the scope of his employment’ is a stunning abdication of the responsibility of command,” said Deborah Pearlstein, counsel in the lawsuit and Director of the U.S. Law and Security Program at Human Rights First.

Since filing the original complaint on March 1, 2005, HRF and the ACLU have continued to update and refine the allegations based on independent research and press reports of further evidence of command responsibility in ordering or tolerating detainee torture and abuse.  The lawsuit against Secretary Rumsfeld was consolidated last year with three similar complaints brought by the ACLU against Colonel Thomas Pappas, former Brigadier General Janis Karpinski and Lt. General Ricardo Sanchez on behalf of the torture victims who were detained in Iraq. The consolidated cases were then transferred to Chief Judge Thomas Hogan of the District Court for the District of Columbia.

The groups are joined as co-counsel in the lawsuit by Bill Lann Lee, Chair of the Human Rights Practice Group at Lieff, Cabraser, Heimann & Bernstein, LLP and former Assistant Attorney General for Civil Rights at the Department of Justice. Rear Admiral John D. Hutson (Ret. USN), former Judge Advocate General of the Navy; and Brigadier General James Cullen (Ret. USA), former Chief Judge (IMA) of the U.S. Army Court of Criminal Appeals, are also engaged as “of counsel” to Human Rights First.

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