[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] Tuesday upheld the dismissal [opinion, PDF] of a torture suit against former US Secretary of Defense Donald Rumsfeld [ABC news backgrounder; JURIST news archive] brought by four Afghan and five Iraqi citizens alleging they were illegally detained and tortured. The plaintiffs sued in 2005 [JURIST report] claiming Rumsfeld and three other high-ranking military officers were directly responsible for violations of the Fifth and Eighth Amendments [text] and the Alien Torture Statute (ATS) [28 USC § 1350] for authorizing their illegal detention and torture by US authorities at Bagram Air Force Base and Abu Ghraib. They alleged that Rumsfeld and the officers formed the policies and practices that led to the unlawful conduct and when they had reason to know it was happening failed to take action to stop it. The US District Court for the District of Columbia [official website] dismissed the lawsuit [JURIST report] in March 2007 holding that government officials had immunity from liability for such conduct overseas. The DC Circuit ruled 2-1 that Rumsfeld and the military officers had qualified immunity from the Bivens claims for Fifth and Eighth Amendment violations since the plaintiffs did not allege any violations of clearly established law. The plaintiffs argued that the Supreme Court case in Boumediene v. Bush [Cornell LII backgrounder; JURIST report] established rights for detainees that were violated. But the court said that this was not established law at the time and even if the plaintiffs could claim constitutional violations the court “would decline to sanction a Bivens cause of action because special factors counsel against doing so.” Further, the court dismissed the plaintiffs’ ATS claims because they alleged only violations of the law of nations and not a violation of US law to satisfy the Westfall Exception [28 USC § 2679(b)(2)(B)] to civil liability for federal employees. The court said that the ATS is only a jurisdictional statute and thus, does not create a cause of action in of itself. Since the court found no cognizable claim it refused to grant the plaintiffs’ request for declaratory relief that Rumsfeld and the officers violated the Constitution, military rules and guidelines, and the law of nations.

Judge Harry Edwards dissented over the dismissal of the plaintiffs’ ATS claims. He said, “[i]t is ironic that, under the majority’s approach, United States officials who torture a foreign national in a foreign country are not subject to suit in an action brought under section 1350, whereas foreign officials who commit official torture in a foreign country may be sued under section 1350.” Rumsfeld has been the target of a number of lawsuits over alleged unlawful detention and torture of suspected terrorists and US enemies. Earlier this month, the Center for Constitutional Rights (CCR) [advocacy website] appealed a case over two Guantanamo Bay [JURIST news archive] detainees, Yasser Al-Zahrani of Saudi Arabia and Salah Al-Salami of Yemen, who committed suicide while in detention in 2006, claiming the US and 24 government officials including Rumsfeld, are responsible for their arbitrary detention, torture, and deaths. Also this month, US citizen and convicted terrorist Jose Padilla [JURIST news archive], represented by the American Civil Liberties Union (ACLU) [official website], appealed [JURIST report] a lawsuit against government officials, including Rumsfeld, over his detention in a military prison arguing that he has a valid Bivens action. Rumsfeld has also faced possible criminal charges in Europe, when, in 2007, a war crimes complaint was filed against him [JURIST report] in Germany for his involvement in detainee treatment. The case was later dismissed [JURIST report].