Rumsfeld to Be Held Accountable for Torture?

This article appeared on Cato​.org on August 31, 2011.
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There is continuing interest here and abroad in the first ruling by a federal appellate court to permit the continuance of a case charging a high‐​level Bush administration official — then‐​Defense Secretary Donald Rumsfeld — with being personally responsible for the torture of two American citizens in Iraq by American forces.

In an Aug. 13 editorial, “Holding Rumsfeld Accountable,” the New York Times was excited because if Rumsfeld is convicted, “it makes clear — for the first time — that government officials can be held accountable for the intentional mistreatment of American citizens, even if that conduct happens in a war zone.” Officials high up in Washington!

However, the editorial goes on to lament that there still is “no accountability for the abuse, and torture, of foreigners by American jailers and interrogators, which Mr. Rumsfeld and President George W. Bush personally sanctioned.”

The New York Times is dead wrong. As I have often demonstrated here, under our U.S. War Crimes Act of 1996 and treaties we have signed, the U.N. Convention Against Torture and the Geneva Conventions — our interrogators and the highest U.S. officials can be held responsible for torture of non‐​Americans, including suspected terrorists in our custody.

That’s why it’s valuable to know, as this case, Donald Vance and Nathan Ertel v. Donald Rumsfeld, moves deeper and higher through our justice system, what actually was done to these Americans and how the 7th Circuit Court of Appeals specifically documents how Rumsfeld was indeed personally responsible.

Can George W. Bush be next? And if the war crime of torture is eventually proved against the Obama administration, what about the role of President Obama? And what about this lesson for future administrations?

Working in Baghdad for a privately owned Iraqi security service, Vance and Ertel came upon shadowy dealings by their employer and reported their suspicions to the FBI. As the ever‐​vigilant researcher and reporter Robyn Blumner of the St. Petersburg Times discovered (“Rumsfeld and the rule of law,” Aug. 11), these whistleblowers were rewarded for their astuteness by being “taken in shackles to a U.S. military facility near Baghdad airport known as Camp Cropper where they were subjected to a range of abuses.

“Held incommunicado and in solitary confinement, their small, feces‐​smeared cells were kept intolerably cold. The men claim the lights were on at all times, loud music was piped in and guards would wake them if they fell asleep. They were often deprived of food and water, physically threatened and abused by being slammed into walls while blindfolded.”

As has often happened to suspected terrorists “detained” by us, there were no charges brought against Vance and Ertel. Apparently there wasn’t even any way to fabricate charges, and they soon were released.

But these two plucky Americans, aware of Rumsfeld’s hands‐​on role in authorizing and implementing intensely “coercive interrogations” of prisoners held by our forces, decided not to let him get away with what happened to them under his watch. As independent American citizens, they took him, august though he was, to court.

In a justly ironic aside, Blumner notes that this year, Rumsfeld received the “Defender of the Constitution” Award from the American Conservative Union. Guess who presented this honor to him? The primary architect of “the dark side,” Dick Cheney.

Jane Mayer, in her book The Dark Side, reported that when Rumsfeld took over as secretary of defense, he said to President Bush: “I need responsibility to prosecute the war, and the president said, ‘You got it.’ ” In an equally revealing book, Torture Team: Rumsfeld’s Memo and the Betrayal of American Values, Philippe Sands reports: “On December 3, 2002, Rumsfeld signed an ‘Action Memo,’ with the head: ‘Counter‐​resistance Techniques.’ Among them: ‘stress positions,’ ‘exploitation of phobias,’ ‘deprivation of lights and auditory stimuli’ and other acutely coercive interrogations forbidden at the time in the Army Field Manual.”

Now we come to the decision to continue the Vance and Ertel case against Rumsfeld by the 7th Circuit Court of Appeals. Judge David Hamilton decides:

“We see no deficiency in the Complaint that would warrant dismissal on the issue of personal responsibility. Taking the factual allegations in the complaint as true, as we must, the plaintiffs have pled facts showing that it is plausible, and not merely speculative, that Secretary Rumsfeld was personally responsible for creating the policies that caused the alleged unconstitutional torture.

“The plaintiffs (also) have adequately alleged that Secretary Rumsfeld acted with deliberate indifference by not ensuring that the detainees were treated in a humane manner despite his knowledge of widespread detainees mistreatment.”

This knowledge was based on Rumsfeld himself having ordered such inhumane treatment. But Rumsfeld claims that not having been there during the infliction of this treatment, he must be immune from personal responsibility from his high perch in Washington. And, of course, “state secrets” are involved.

The 7th Circuit Court of Appeals does not agree. President Obama eschews any attention to such past issues. But what about the Republican candidates for the presidency? Do they have anything to say? I am particularly eager, Gov. Rick Perry, to hear from you on the Bush‐​Cheney‐​Obama accountability for war crimes on torture. You certainly do not refuse to look backward while also forging strongly ahead.

Nat Hentoff

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow.