The debate over abuses in U.S. military prisons in Iraq and Afghanistan flared again Friday, with nine former detainees seeking the right to sue outgoing Defense Secretary Donald H. Rumsfeld and three senior Army leaders for alleged torture.
In U.S. District Court, lawyers for Iraqi and Afghan civilians said that Rumsfeld and the officers, two of whom have retired, violated U.S. and international law and should be held personally responsible for the abuse they say their clients suffered.
The suit is believed to be the first to try to hold U.S. officials accountable for the abuse at prisons. The scandal triggered worldwide outcry and forced an overhaul of U.S. interrogation rules.
U.S. District Judge Thomas F. Hogan indicated he was sympathetic to the former detainees' plight, but he questioned whether they had the right under the U.S. Constitution to sue.
"It's unfortunate, to say the least, that there has to be an argument that U.S. military officials tortured citizens of another country," Hogan said. "That being said, there is substantial difficulty in recognizing claims of noncitizens held in other countries."
The ex-prisoners said in the suit that they were beaten to the point of unconsciousness, mutilated, stabbed and urinated on, and endured mock executions, among other abuses.
They were among the thousands of prisoners held by the U.S. military at Abu Ghraib and other locations in Iraq and Afghanistan, including detention facilities in Kandahar and Bagram.
They asked the court to award unspecified monetary damages and to declare their treatment illegal.
Government lawyers argued that the suit should be dismissed because Rumsfeld was immune from being sued for acting within the course of his official duties. (Rumsfeld has resigned; he gave his farewell speech to Pentagon employees Friday.) The lawyers also said the suit would expand foreign citizens' rights to file lawsuits in U.S. courts far beyond what the Supreme Court has allowed.
The judge himself cited the case of Johnson vs. Eisentrager, decided by the Supreme Court in 1950, which held that enemy aliens being held by military authorities outside the U.S. had no rights under the U.S. Constitution to challenge their detention in civilian court.
"Given Eisentrager, I don't see how the 5th Amendment extends to these individuals," Hogan told an ACLU lawyer, referring to the constitutional right to due process.
Hogan said he was concerned that this suit would open the door to foreigners to file all kinds of lawsuits. "Where does it stop?" he asked.
Lucas Guttentag of the American Civil Liberties Union, lead counsel for the ex-detainees, responded that the case was special because of the United States' unequivocal prohibition on torture and because of an extensive paper trail showing that Rumsfeld and the senior Army officials knew or should have known their policies were leading to torture.
He also said U.S. officials should be held responsible because Iraqi law had been suspended after the U.S. invasion. If officials cannot be held responsible under U.S. law for their actions, he said, the detainees have no legal recourse.
"You have a rights-free zone," Guttentag said. "There is nothing that applies."
"You agree what you're asking for has never been decided by a court before?" Hogan said. Guttentag responded that there had never been allegations of such abuse before either.
The suit alleges not only constitutional violations but also violations of the Geneva Convention's ban on torture.
Hogan questioned whether individuals had the right to sue for violations of their rights under the treaty. He expressed concern that such an interpretation would allow "individuals around the world to sue here in the U.S." for a range of injuries not limited to torture.
Hogan asked the lawyers for Rumsfeld and the other officials whether the immunity they sought was absolute. "Would you take the same position if the claim was one of genocide?" he asked C. Frederick Beckner III, a deputy assistant attorney general.
Beckner acknowledged the seriousness of torture and genocide but said that allowing suits by victims of either one would have the effect of disrupting and "potentially chilling" the military's ability to conduct wartime operations.
He said the military took abuse claims seriously and had prosecuted more than 100 misconduct cases.
Besides Rumsfeld, the suit names as defendants retired Lt. Gen. Ricardo S. Sanchez, the one-time commander of U.S. forces in Iraq; former Army Reserve Brig. Gen. Janis Karpinski, the commander of military police at Abu Ghraib, who was demoted to colonel before retiring; and Col. Thomas M. Pappas, the officer in charge of military intelligence at Abu Ghraib.