Rumsfeld and Military Commanders Defending Against Suit for Torture

Carol Leonnig for WaPo reports: In a federal courtroom today, nine former prisoners at U.S. military prisons in Iraq and Afghanistan will seek through an unusual lawsuit to hold outgoing Defense Secretary Donald H. Rumsfeld and top military commanders personally responsible for the torture they say they endured. Rumsfeld's lawyers will argue that he cannot be held legally responsible because anything he may have done -- including authorizing harsh interrogations at the Abu Ghraib and Bagram detention facilities -- was within the scope of his job as defense secretary to combat terrorists and prevent future attacks. (…) At stake is whether the former prisoners can move forward with four lawsuits, filed last year against Rumsfeld, retired Lt. Gen. Ricardo S. Sanchez, former Brig. Gen. Janis L. Karpinski and Col. Thomas M. Pappas and now consolidated into one case. (…) "It's a difficult lawsuit to prevail across the board, but it's not one that doesn't have legitimate basis in the law," said Linda Malone, a visiting professor of national security at the University of Virginia School of Law. The central claim by Rumsfeld and other officials is that the plaintiffs have no rights under the Constitution and that the Military Commissions Act, signed into law in October, bars court review of any pending cases involving detention. They also argue that under the 1988 Westfall Act, which amended federal tort law, the officials are protected from personal liability because the actions that are alleged occurred within the scope of their employment. Malone said that is a relatively weak part of the officials' defense. "In international law, the prohibition against torture is one of the most serious conventions," Malone said. "There is an obligation to prosecute and punish those crimes. Just to say it's within the scope of his job -- there simply has to be more to his defense than that."