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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 208
September 24, 2005

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The case against Donald Rumsfeld: Ali v. Rumsfeld

A Reader

On March, 2005, a case was lodged against the current U.S secretary of defence Donald Rumsfeld for the torture and inhuman treatment of detainees in Iraq and Afghanistan which violated several major domestic and international laws and conventions. The case was joined in as co-counsel by the American Civil Liberty Union (ACLU) on behalf of the plaintiffs who were detainees in detention camps across Iraq and Afghanistan. The eight plaintiffs sought declaration from the federal district court at Illinois that Rumsfeld violated his legal duties and that they should receive compensation for torture and abuse.

Similar action was also taken against Colonel Thomas Pappas, Brigadier General Janis Karpinski and Lt. General Ricardo Sanchez.

The lawsuit comes amid widespread allegations that U.S military is carrying out systematic torture, abuse and inhuman treatment on the detainees at detention camps set up in Iraq, Afghanistan and Guantanamo Bay. It should be noted that majority of the people arrested and kept in these camps face torture and abuse without even being formally charged, as reported by several human rights groups including Human Rights Watch and Amnesty International. They are deprived of any legal protection under international law, have no access to court or counsel and are denied family visits. Physical and psychological injuries have led to several suicide attempts in Guantanamo Bay, where they are eventually brought from prisons in Iraq and Afghanistan. There were several homicides in Iraq and Afghanistan under interrogation.

Although the prisoners have been arrested during the war of Afghanistan and Iraq, they have been refused the status of prisoner of war under Article 5 of the Third Geneva Convention¸ nor were their status clarified by the U.S government. The U.S government loosely call them 'enemy combatants'. Special military tribunals have been set up for the detainees, against whose decision there is no scope for appeal into a higher court. These tribunals will accept lower standard of evidence, which could include evidence obtained under oppression and will give defendants limited freedom for counsel. They will lack independence and allow limited rights for the defendants. These directly violate the fundamental concepts of rule of law and justice. According to Lord Steyn of the House of Lords of the United Kingdom, such trials will be "a stain on United States justice".

Formal charges
Formal charges against Donald Rumsfeld were that:
- Secretary Rumsfeld authorised, ratified and failed to stop unlawful treatment of the prisoners under US custody. As the Defence Secretary, he formulated the rules and regulations of interrogation and treatment of the prisoners, was directly and personally involved in making these rules and exercised his powers to allow his subordinates to carry out torture or other cruel, inhuman or degrading treatment of detainees under custody.

- Rumsfeld was well informed of the abuses and did not do anything to stop it. Through his actions and failure to act, he has expressly and tacitly authorised his subordinates unlawful conduct.

- Exercised effective command over individuals who intentionally and knowingly subjected the detainees to cruel, inhuman and degrading treatment.

- As a commander responsible for his subordinates, did not punish the ones who were responsible for such illegal acts nor took any steps to prevent such occurrences in the future.

Legal basis of the claims
Violation of Fifth Amendment Due Process Clause: It prohibits any person under the U.S law from engaging in or allowing torture, abuse or other treatment that "shocks the conscience" (Rochin v California [1952]).

- Violation of Fifth and Eight Amendment Prohibitions on Cruel and Unusual Punishment: The Fifth and Eight amendments to the US Constitution prohibits any person acting under US law from engaging in or allowing torture; or other cruel, inhuman or degrading treatment or punishment; or any other treatment that constitutes deprivation of basic human needs and the unnecessary and wanton infliction of pain on any person in U.S custody or control. One of the core functions of the Eight Amendment is to " proscribe torture and other barbarous methods of punishment" ( Estelle v Gamble [1976]).

- Violation of the Law of Nations regarding Torture and Cruel, Inhuman or Degrading Treatment: The United States has signed and ratified several international documents ensuring the fundamental human rights, such as the prohibition of torture or cruel treatment. This also includes the United Nations Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment (Dec 10, 1984).

- Violation of the Geneva Conventions: The Third and Fourth Geneva Conventions, including Article 3 (relating to the treatment of prisoners of war) specifically prohibit torturous treatment to prisoners. As a signatory to this convention, the failure to adhere to these provisions constitutes a direct and enforceable violation to the treaties.

Supervising officers in civilian and military command are directly responsible for the constitutional violations of their subordinates when (1) they had actual or constructive notice, (2) despite such knowledge, left the conditions unchanged, (3) understood the substantial likelihood that torture and alike would ensue but acted with deliberate indifference and failed to prevent steps to prevent it and (4) their actions were the proximate cause of injuries suffered by the plaintiffs ( Farmer v Brennan [1994], Estelle [1976], Jones v City of Chicago [1988]). The doctrine of command responsibility is well recognised by the law of nations. The US Supreme Court recognised it since Re Yamashita [1946]. Article 93 of the Uniform Code of Military Justice of the U.S imposes criminal liability on members of the US military personnel who mistreat detainees under their custody. Prohibition of torture and cruel treatment is recognised as fundamental human rights and cannot be derogated under any circumstances. According to the plaintiffs, Rumsfeld's new regulations and policies during the Afghanistan war fundamentally changed interrogation and treatment practices within the US army. Soon after the military conflict in Afghanistan, the US army under Donald Rumsfeld began to abandon the absolute prohibition against torture and he directly authorized harsh interrogation techniques as well as strict requirements to obtain information from the prisoners. As a consequence to his actions, many of his subordinates were also permitting and participated in this procedure. Several advocacy groups have obtained around 23,000 pages of documents concerning abuses under the Freedom of Information Act lawsuit. These documents show that US Defense Secretary Donald Rumsfeld is directly and personally responsible for the systematic maltreatment of the detainees at prisons around Iraq and Afghanistan. Apparently, the infamous Abu Ghraib prison incident was the tip of the ice-berg.

Similar several cases against the administration are also pending with the domestic courts. The plaintiff in Hamdi v Rumsfeld was released following lack of evidence regarding terrorism as well as enemy combatant status. In Hamdan v Rumsfeld the plainfiff won a partial victory. A torture suit is underway filed by six Algerians alleging gross mistreatment and torture in Guantanamo Bay. Earlier, Rasul v Bush confirmed that the US federal district courts have jurisdiction over cases coming out of the infamous detention camps. With the US withdrawal of it's signature from the Rome Statute for the International Criminal Court, it is up to the domestic courts to deliver justice to the hundreds of detainees held in these detention camps.


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