[PAA-Discuss] Getting away with torture

[Juli3 at aol.com]

New York  Times editorial   11-14-12
<NYT>Getting Away With To
<NYT
 
In a decision that ignored a 41-year-old precedent  and American 
obligations under international law, a United States appeals  court has ruled that 
American civilians who are tortured by the American  military cannot recover 
damages from the people responsible.  
The 8-to-3 _ruling_ 
(http://www.lawfareblog.com/wp-content/uploads/2012/11/Vance-en-banc-opinion.pdf)   by the full United States Court of Appeals for 
the Seventh Circuit overturned  an important ruling last year by a 
three-judge panel of the same court, which  held that two Americans who say they were 
tortured by American military forces  in Iraq could sue former Secretary of 
Defense Donald Rumsfeld for violating  their constitutional rights. That 
ruling relied on a landmark 1971 ruling by  the Supreme Court known as 
_Bivens_ 
(http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=403&invol=388) ,  under which government officials could be held accountable for the 
intentional  mistreatment of American citizens, even if that conduct happened 
in a war  zone.  
Reversing that decision, the full court’s majority  incorrectly joined the 
Fourth Circuit and the District of Columbia Circuit in  rejecting damage 
suits against American officials based on torture claims. But  its ruling was 
much broader and a lot worse. The court held that all military  personnel are 
exempt from civil liability for breaching civilians’ rights.  “Unless 
there is a right of action against soldiers and their immediate  commanders,” it 
said, “there cannot be a right of action for damages against  remote 
superiors such as former Secretary Rumsfeld.”  
The majority talked derisively about lawsuits  causing “other problems, 
including diverting cabinet officers’ time from  management of public affairs 
to the defense of their bank accounts.” It is a  bizarre argument for a 
cabinet officer who developed policies that permitted  torture.  
Mr. Rumsfeld and other defendants made an argument  limited by place: it 
was in a war zone that no government or military employee  could be sued for 
torture. The Seventh Circuit ruling has no limit. Instead,  as a dissent in 
the case explained, “We leave citizens legally defenseless to  serious abuse 
or worse by their own government.”  
In 2006, the United Nations asked the United States  how it would meet its 
obligations under a treaty to enforce the international  law against 
torture. The State Department said American law provides redress,  including by 
allowing plaintiffs to sue “federal officials directly for  damages under 
provisions of the U.S. Constitution.”  
That is no longer true in cases like this one in the  Seventh Circuit. The 
military often prosecutes its own malefactors, but if it  does not, the 
federal courts should be available to protect American liberty.  Foreign 
citizens can sue foreign officials under American law. Americans can  sue foreign 
officials. But in the Seventh Circuit, covering Illinois, Indiana  and 
Wisconsin, Americans are the only citizens who have no remedy under  American law 
against American officials allegedly responsible for torture.  


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