Friday, December 08, 2006


Reading a law review article; now that's torture...

Sheesh! Ex-Detainees Seek to Sue U.S. Officials.

“In a federal courtroom today, nine former prisoners at U.S. military prisons in Iraq and Afghanistan will seek through an unusual lawsuit to hold outgoing Defense Secretary Donald H. Rumsfeld and top military commanders personally responsible for the torture they say they endured.”

I’ve read enough newspapers to be wary of a reporter’s synopsis of a legal matter so I will delay commenting on specifics here although I am skeptical that this is anything more than a publicity stunt by the plaintiffs’ attorneys – the usual suspects of the ACLU and Human Rights Watch. But the article does include some comments from “Linda Malone, a visiting professor of national security at the University of Virginia School of Law.”

Post writer Carol Leonnig alludes to the defense claims that the plaintiffs have no rights under the constitutions, that the October 2006 Military Commissions Act bars court review of detention cases and, besides, federal tort law protects federal officials personally from liability arising out of their employment.

“Malone said that is a relatively weak part of the officials' defense.

"In international law, the prohibition against torture is one of the most serious conventions," Malone said. "There is an obligation to prosecute and punish those crimes. Just to say it's within the scope of his job -- there simply has to be more to his defense than that."

Now Ms. Malone is no dispassionate observer of this matter. She was “co-counsel for amicus in the Supreme Court in Padilla v. Rumsfeld and Hamdan v. Rumsfeld.” (Linda Malone). I don’t think it’s a stretch to say she is probably sympathetic to any claim against Don Rumsfeld.

I think her comments provide an excellent insight to the mindset of the legal left. She goes on about how there is an obligation to prosecute and punish torture; this is both true…and irrelevant.

Because, this isn’t a prosecution –it’s a lawsuit. I realize it flatters many on the legal left to picture themselves as moral prosecutors but our laws (and even their venerable, but nebulous, international law) simply don’t work that way…as inconvenient a truth as that may be for them.

Besides, and speaking of inconvenient truths, the crimes at Abu Ghraib WERE prosecuted and the guilty were punished. This has all the markings of a fishing expedition solely designed to harass Donald Rumsfeld (with the others thrown in only to form a bridge to get to him).

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