Boulder Dude

Judge Dismisses Lawsuit Against Rumsfeld

By MATT APUZZO The Associated Press Tuesday, March 27, 2007; 8:37 PM

WASHINGTON -- Former Defense Secretary Donald H. Rumsfeld cannot be tried on allegations of torture in overseas military prisons, a federal judge said Tuesday in a case he described as "lamentable."

U.S. District Judge Thomas F. Hogan threw out a lawsuit brought on behalf of nine former prisoners in Iraq and Afghanistan. He said Rumsfeld cannot be held personally responsible for actions taken in connection with his government job.

The lawsuit contends the prisoners were beaten, suspended upside down from the ceiling by chains, urinated on, shocked, sexually humiliated, burned, locked inside boxes and subjected to mock executions.

Lawyers for the American Civil Liberties Union and Human Rights First had argued that Rumsfeld and top military officials disregarded warnings about the abuse and authorized the use of illegal interrogation tactics that violated the constitutional and human rights of prisoners.

Hogan appeared conflicted during arguments last year. On one hand, he said he was hesitant to allow allegations of torture to go unheard. On the other hand, he said the case was unprecedented.

Except you know....where it* isn't**.

"There is no getting around the fact that authorizing monetary damages remedies against military officials engaged in an active war would invite enemies to use our own federal courts to obstruct the Armed Forces' ability to act decisively and without hesitation," Hogan wrote Tuesday.

Rumsfeld is no longer in the Government and I see no reason why he should not be sujected to the same rules we decided to impose on others. But I guess it is quaint to think that the "good guys" should have to follow ideal contained in the Geneva Convention and the United Nations Convention Against Torture.

Had the Rumsfeld lawsuit been allowed to go forward, attorneys for the ACLU might have been able to force the Pentagon to disclose what officials knew about abuses such as those at Abu Ghraib prison in Iraq and what was done to stop it.

And that would have been....Wrong, wrong I say to hold people responsible for actions taken in U.S. citizens names.

Hogan also dismissed the charges against other officials named in the lawsuit: retired Lt. Gen. Ricardo S. Sanchez, former Brig. Gen. Janis L. Karpinski and Col. Thomas M. Pappas.

Karpinski, whose Army Reserve unit was in charge of the Abu Ghraib prison, was demoted and is the highest-ranking officer punished in the scandal. Sanchez, who commanded U.S. forces in Iraq, retired from the Army and said his career was a casualty of the prison scandal.

Do as we say, not as we do.

*Introducing responsibility for an omission Tomoyuki Yamashita, 1945 Command responsibility is an omission mode of individual criminal liability: the superior is responsible for crimes committed by his subordinates and for failing to prevent or punish (as opposed to crimes he ordered). In Re Yamashita before the United States Military Commission, General Yamashita became the first to be charged on the basis of responsibility for an omission. He was leading the 14th Area Army of Japan in the Philippines when they engaged in atrocities against thousands of civilians. As commanding officer he was charged with "unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes."

With finding Yamashita guilty, the Commission adopted a new standard to judge a commander, stating that where "vengeful actions are widespread offences and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable." However, the ambiguous wording resulted in a long-standing debate about the standard of knowledge required to establish command responsibility. After sentencing he was executed.

Following In re Yamashita courts clearly accepted that a commander’s actual knowledge of unlawful actions is sufficient to impose individual criminal responsibility.

In the High Command Case, the United States Military Tribunal argued that in order for a commander to be criminally liable for the actions of his subordinates "there must be a personal dereliction" which "can only occur where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part," based upon "a wanton, immoral disregard of the action of his subordinates amounting to acquiescence."

In the Hostage Case, the US Military Tribunal seems to reduce the duty to know of a commander to instances where he has already had some information regarding subordinates’ unlawful actions.

So, following World War II, the parameters of command responsibility were increased, imposing liability on commanders for their failure to prevent the commission of crimes by their subordinates. These cases, the latter two of which were part of the Nürnberg tribunals, discussed explicitly the requisite standard of mens rea, and were unanimous in the finding that a lesser level of knowledge than actual knowledge may be sufficient.

And...

**From October 29 to December 7, 1945, an American military commission tried General Yamashita for war crimes relating to the Manila Massacre and sentenced him to death. This case has become a precedent regarding the command responsibility for war crimes and is known as the Yamashita Standard.

General Tomoyuki Yamashita at his trial in Manila, November 1945 The legitimacy of the hasty trial has been called into question by many, as considerable evidence pointed to the fact that Yamashita was either not aware of the atrocities that were committed, or was unable to properly control his soldiers due to communication disruption caused by the U.S. Army during their offensive. (One of the atrocities in Manila was even carried out by a unit that disobeyed his orders to retreat.) Other war crimes were said to have occurred under Yamashita's command; in Singapore when troops had bayoneted hospital patients (Yamashita promptly executed the officer directly responsible for this), and in the Philippines when Imperial Japanese Navy forces (not under Yamashita's command) holed up in Manila massacred civilians.

Yes, things I remember learning while being bored to tears in Doomfield High world history class and finding other things to read after I finally convinced the teacher I could test out of his class if he would let me and decided to let me do Independent study for the next semester and a half...really it was the snoring that finally did it, or maybe the desk drool.