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No one inside the courtroom believed torture should be condoned or that mutilating prisoners or hanging them by their arms was the sort of action that should go unpunished. But what Chief Judge Thomas Hogan wanted to know was whether allowing such claims to go forward in a lawsuit, filed by foreign citizens living abroad who say they were held captive in Iraq and Afghanistan, would open up American courts to suits from someone like Osama bin Laden. “If you’re going to extend the right to aliens in a time of war,” Hogan asked, “how do you control that and where does it stop?” That question was central to whether Hogan will dismiss the suit filed in the U.S. District Court for the District of Columbia by nine plaintiffs who want to hold former Secretary of Defense Donald Rumsfeld and three other high-ranking U.S. military officials accountable for torture that allegedly occurred at Abu Ghraib and other military prisons. The case is the first filed by noncitizens outside the country against high-ranking military officials during a time of war. In addition to Rumsfeld, the defendants are Lt. General Ricardo Sanchez, who oversaw U.S. forces in Iraq from June 2003 to July 2004; Brig. Gen. Janis Karpinski, who oversaw the Abu Ghraib prison; and Col. Thomas Pappas, who directed intelligence gathering at Abu Ghraib. They’ve asked Hogan to dismiss the case, saying he has no jurisdiction. Hogan’s decision will likely hinge on whether nonresident foreigners have a right to sue for constitutional violations in the U.S. judicial system — something no court has ever granted. (Whether the allegations can be proven is not at issue this early in the litigation.) At a Dec. 8 hearing on the defendants’ request, Hogan appeared doubtful that foreign citizens would have the right to make their claim. Lucas Guttentag, one of the plaintiffs’ attorneys from the American Civil Liberties Union, tried to appease Hogan’s concerns that the case would create a floodgate of illegitimate lawsuits. This case, he said, draws on claims so fundamental — such as torture — that no one would dispute their importance. And, he noted, they were supported by a lengthy paper trail. “This is not a bare-bones complaint,” he said. What the plaintiffs are looking for is simple and would not interfere with the military chain of command, said Cecillia Wang, another ACLU attorney. Hogan, she said, should tell those officials, “What you did was illegal and you can’t do it that way. We’re not going to say how you should do it, we’re just going to say you can’t do it that way.” To Guttentag, the U.S. military control of Iraqi and Afghani prisons is similar to its oversight of the Guant�namo Bay prison — which, the Supreme Court held in Rasul v. Bush, falls under the courts’ jurisdiction. If the court does not recognize that principle, he argued, then “what we have is a rights-free zone.” Although Guttentag was certain the officials must have known that such activity violated the law, Hogan wasn’t entirely convinced. He noted that two of his fellow judges on the court had come down on contradictory sides over the question of whether the Guant�namo detainees had such a right. “How then are military officers supposed to know they are subject to this litigation?” Hogan asked. Indeed, defense attorneys from the Justice Department and private law firms argued the U.S. courts were not the proper forum for such allegations. Justice still could be served, and better, they said, in the military justice system, where 105 members of the military already have been court-martialed on charges of detainee abuse. Allowing the case to go forward would be an “unprecedented global extension of the Constitution,” said Aryeh Portnoy, a Crowell & Moring attorney representing Karpinski. What’s more, defense attorneys argued, the allegations fell within the officials’ employment duties, which should shield them from further litigation. Holding officials liable in such a suit, they argued, would hinder military officers in actions during war and meddle with the political decision-making best reserved for the executive branch. “It’s a little like asking the court if a tank unit or an infantry unit should be used in a particular battle,” said Josh Klein, a Baker Botts attorney representing Sanchez. Indeed, Hogan noted, continuing this case would create an “anomaly” of justice. It would mean that a non-citizen could sue military officials, even though case law bars U.S. soldiers from suing their superiors in U.S. courts, he said. Which is why, as Hogan closed the two-and-one-half-hour long hearing, he told attorneys that while “there are principles of international law that are so fundamental they should be recognized,” letting noncitizens sue presents “substantial difficulties” he will need to mull over before issuing a decision.
Emma Schwartz can be contacted at [email protected].

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