Rumsfeld lawsuit and DOJ error

Jordan Paust [University of Houston Law Center]: "A DOJ filing in the lawsuit against Secretary of Defense Rumsfeld concerning detainee abuse attempts to defend torture, cruel treatment, inhuman treatment, degrading treatment, and humilitaring treatment of detainees expressly authorized by Secretary of Defense Rumsfeld in at least two memos (e.g., the stripping of persons naked and hooding for interrogation and the terroristic use of dogs for interrogation) and his alleged conspiratorial involvement, complicity, and dereliction of duty (all conduct in violation of customary and treaty-based international law, which is supreme law of the United States [ see, e.g., http://www.columbia.edu/cu/jtl/Vol_43_3_files/Paust.pdf ] as conduct "within the scope" of his employment.

Clearly, however, his conduct was ultra vires and, thus, beyond any lawful scope of employment and nonimmune under internatonal law. See, e.g., 43 Columbia Journal of Transnat'l Law 811, 852-53 n.154 (2005); see also id. at 855-61 & esp. nn.192-196. Neither he nor the President has any authority to violate relevant laws of war and human rights law. Id. at 855-61, and the many cases cited. Moreover, the judiciary clearly has the power and responsibility to review such violations. See, e.g., Judicial Power to Determine the Status and Rights of Persons Detained Without Trial, 44 Harvard Int'l L.J. 503, 517-24 (2003), and numerous cases cited."

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