Human rights organizations are attempting to take accountability for the US military's alleged use of torture to a place government officials have so far failed to go - the top of the chain of command.
In a case that raises significant moral as well as legal questions about the Bush administration's conduct of the war on terror, a coalition of human rights groups, aided by former military officials, is suing to pin blame for the interrogation abuses in Iraq, Afghanistan, and elsewhere at the highest level of government.
Tuesday, the American Civil Liberties Union (ACLU) and Human Rights First filed a lawsuit in a federal court in Illinois on behalf of eight men who they say were subjected to torture and abuse by US forces under the command of Defense Secretary Donald Rumsfeld.
"Secretary Rumsfeld bears direct and ultimate responsibility for this descent into horror by personally authorizing unlawful interrogation techniques and by abdicating his legal duty to stop torture," says Lucas Guttentag, lead counsel in the lawsuit and director of the ACLU's Immigrants' Rights Project. "He gives lip service to being responsible but has not been held accountable for his actions. This lawsuit puts the blame where it belongs, on the secretary of Defense."
The suit charges Mr. Rumsfeld with violations of the US Constitution and international law prohibiting torture and cruel, inhuman, or degrading punishment. The lawsuit also seeks compensatory damages on behalf of the eight individuals allegedly tortured and abused by US military forces.
Although a civil case, it is building on a legal doctrine of holding top officials accountable for treatment of detainees in times of war, according to Scott Horton, chairman for the committee on international law at the New York City Bar Association. The legal rationale is rooted in the Nuremberg trials of 1946, he says, in which top officials were held responsible for establishing an "environment" permissive of abuse.
It's not clear, of course, if the charges will stick or even how the cases will proceed. Military historians can't recall a similar suit being filed. The closest, they say, occurred on the Philippine island of Samar at the turn of the 20th century. Still, those court martials did not go above the level of a brigadier general.
At press time Tuesday, neither Rumsfeld nor the Pentagon had responded to the charges levied in the lawsuit.
"This is obviously the opening gun in what is likely to be a very hard-fought case on both sides," says Eugene Fidell, a military law expert in Washington. "The authors have done an enormous amount of homework and have mined the reports generated over the last year as well as the information the ACLU and others obtained under the FOIA [Freedom of Information Act]."
The potential implications of this lawsuit are broad. If the prosecutions proceed, for instance, CIA officials could be charged for their role in the alleged torture of several Al Qaeda detainees they've had in its custody in undisclosed locations overseas.
The results of an internal investigation are expected soon. Moreover, the White House's general counsel wrote the memo believed to have created the atmosphere for the abuses. Will he be charged?
The human rights organizations vowed Tuesday to continue to push until they get to the bottom of the abuse scandal they say has tarnished the US at home and abroad. In the past few months, the ACLU has filed a number of FOIA requests that have resulted in the release of volumes of documents relating to torture, including a batch of FBI memos complaining about significant military abuses taking place at Guantánamo Bay, Cuba.
Information gleaned from these documents form the basis of the charges in these cases, human rights lawyers said Tuesday.
In addition to Rumsfeld, ACLU officials said suits were also filed against Lt. Gen. Ricardo Sanchez, who at the time of the Abu Ghraib abuses was in charge of US military operations in Iraq. They also took legal action against Gen. Janis Karpinsky, in charge of the military police at Abu Ghraib, and Col. Thomas Pappas, in charge of the military intelligence interrogators. And they say they are continuing to investigate other s in the chain of command.
Two Pentagon-ordered reports have so far been completed - the Schlesinger and Taguba reports. Both found responsibility for the environment in which the abuses occurred, although not culpability, lay with higher-level officers. Another Pentagon investigation, instigated by the ACLU's release of the FBI memos criticizing military interrogation tactics at Guantánamo, was due out this week.
But on Monday, the Pentagon replaced a one-star general with a three-star general to head up that probe, and it is now not known when it will be completed. The one-star general, because of his lower rank, would not have been permitted to investigate the higher-ranked two-star general in charge of Guantánamo, Maj. Gen. Geoffrey Miller, who is named in several of the FBI memos.
Up to this point, only lower-level enlisted men and women have been charged. The most notorious, Spc. Charles Graner, was convicted on several accounts of abuse and sentenced to a 10-year prison term by a court-martial in mid-January. Pvt. Lynndie England and Spc. Sabrina Harman still face charges, while six others have entered guilty pleas.
This past November, US human rights lawyers filed a similar case against Rumsfeld and former CIA director George Tenet in Germany, because its laws allow war crimes prosecutions across national boundaries. But on Feb. 10, the German court ruled the case would not go forward.
"I would suspect the suit is an attempt to improve accountability," says a former Army general who still works for the Pentagon. "And it's to send a message to all involved in such operations that they can be held accountable individually and institutionally for actions on their watch."