Ever since the prisoner abuses at Abu Ghraib came to light -- soon followed by accounts of similar crimes at other US detention facilities -- human rights and civil liberties organizations have campaigned for an independent commission to thoroughly explore who bears ultimate responsibility. Congress and the Bush administration have failed to heed the call.
The few military investigations into this campaign of abuse have pointedly steered clear of the upper reaches of the military chain of command, instead pinning the blame on more lowly actors operating, supposedly, on their own initiative.
The evidence strongly suggests otherwise. It was U.S. Attorney General Alberto Gonzales who penned the memos asserting, in essence, the legality of torture, and it was Secretary of Defense Donald Rumsfeld who personally approved the use of extremely harsh interrogation techniques.
In light of this evidence, the rights groups Human Rights First and the American Civil Liberties Union (ACLU) have teamed up to bring a lawsuit against Defense Secretary Rumsfeld, no less, charging that Rumsfeld directly sanctioned the use of torture and thus bears substantial responsibility for the abuses that have occurred and, for all anybody knows, continue to occur.
Avi Cover, a senior associate at Human Rights First, recently spoke with Mother Jones about how they are putting together this unique case, and what they hope to come from it.
Mother Jones: What is the main purpose of this lawsuit against Rumsfeld?
Avi Cover: It is first and foremost to get compensation for the detainees we're representing. Secondly, and arguably more significant, is getting declaratory judgment that will put an end to the current policy of torture, and brings things back to what we believe was at one point a law-abiding system of interrogation that would not have authorized cruel, inhuman, and degrading treatment and other sorts of abuses.
MJ: Can a substantial ruling come out of federal court? Or do you think it is an eventuality that the case will end up in Supreme Court?
AC: I don’t know. Certainly the Supreme Court has accepted a number of these cases and has given rulings that are heartening to groups like ours in terms of ensuring a certain rule of law and a belief that we can fight terrorism and still honor our legal commitments. It would not surprise me if we ended up in the Supreme Court eventually, I think there are a lot of hurdles and legal fights before we get to that stage.
MJ: What is the scope of this case?
AC: We are bringing the suit specifically on behalf of these eight individuals. It's not a class action representing every detainee. We're not seeking punitive damages, we are just looking at compensation for suffering, medical bills, that sort of thing. The judgment that we would hope the court would issue would indeed affect all individuals in detention currently as well as those in the future. It would be along the lines of an injunction saying that this policy currently is unlawful and would set the limits to what the U.S. government can do.
MJ: What evidence are you using in your case?
AC: We did field missions and met with our clients so we have documented their allegations or torture and cruel, inhuman, and degrading treatment. In addition we are relying on the ACLU's documents that they have obtained through the Freedom of Information Act (FOIA). Additionally, there are various reports from Amnesty, the Red Cross, and even the government's own investigations. All of these paint a large picture that more adequately the story of our eight detainees. It's all part of the same puzzle. [??]
MJ: What is the legal argument you are using?
AC: There are two theories of liability that we have. The first is the basic one that states directly that, as a result of Donald Rumsfeld's order, this abuse happened. The other is the concept of command responsibility, which basically says that the commanding officer of the military can be held responsible for actions that occurred under his watch. This can be war crimes or serious breaches of international law that he either knew about or should have known about and failed to prevent or punish. And that precedent that we draw upon interestingly comes about from a case called Yamashita who was actually a Japanese general and the U.S. brought this case against him and the Supreme Court upheld that standard. We are saying that Rumsfeld has violated the 5th and 8th amendments of the U.S. Constitution. In addition, we've brought a claim under the Alien Tort Claim Act which states that foreign citizens can bring claims for actions that violate the laws of nations against government officials. This Act dates back to 1789 and has been used frequently in the last two decades.
MJ.com: What arguments do you anticipate the administration to make?
AC: I think they will argue that there is a certain level of immunity for Rumsfeld. Significantly, we’ve sued him in his personal capacity. Our view is that he went outside the law. There's no way the government would have truly wanted this and that's why we're not suing the Department of Defense or the United States. We’re suing Rumsfeld because we believe he bears direct responsibility. The administration could argue that Rumsfeld's actions do reflect the stance of the government. But that would essentially mean that they would take ownership for what Rumsfeld has done. That's the only way they can argue for some immunity to be afforded him. The defense will argue that this is in the context of the military and that we're fighting war, and this isn’t a place for the courts to step in. Related to that is the view that these former detainees don't have certain legal right because they aren't American. We saw these arguments at Gonzales' hearings, so it wouldn't be so surprising to see them take this tack again.
MJ: Are you optimistic you can win this?
AC: Maybe not right away, but eventually. Every position the administration has taken seems to be above the law starting with denying the detainees hearings afforded to them under the Geneva Conventions. If they had given detainees Geneva Convention hearings, I don't think that people would have argued what is now being argued—that these hearings should be in federal court. What has happened is that with such continual denial of rights, and with the administration having taken such an extreme position, the courts are starting to smack back and says—it's one thing for you to ask for a little bit, but now you ask for so much. Historically, every individual seized in warfare has been allowed a very rudimentary, competent tribunal. We did it in Iraq. We did in Vietnam. It's not something that's so difficult to do. It's one thing if a court hears we want a little deference, but it's another when a court is hearing that the government's basic view is that no laws apply to them. And to be told that you—the courts, the judges—have no role in anything we do is just offensive. The government knows this is a bad situation.