Was Rumsfeld a torturer?

Despite the repeated calls for an independent bipartisan investigation of those at the highest level of our government responsible for authorizing the torture policy that provided al-Qaida with an effective recruiting instrument, the stubborn fact now is the same as reported by Jane Mayer in "The Dark Side" (an indispensable book based on Dick Cheney's forecast five days after 9/11 on how the U.S. war on terrorism would be waged). "As of the spring of 2008," Mayer wrote, "no senior Bush administration official had been prosecuted or removed from office in connection with the abuse of prisoners." So it remains in 2010. However, it was Cheney who unintentionally gave a lift to Americans demanding accountability when he, defending John Yoo (author of 2002 "torture memos"), said on ABC television, Feb. 14, 2010: "I thought it was important for some senior person in the administration to stand up and defend those people who'd done what we asked them to do." Who were the "we" at the top who told the lawyers what they wanted to hear? In December 2008, a bipartisan report by the Senate Armed Services Committee named former Defense Secretary Donald Rumsfeld as one of those senior officials who "redefined the law" to permit the use of torture (UPI, Dec. 12, 2008). But the story ended there. There was no prospect of Rumsfeld being put on trial to answer the accusation. But in an unexpected and historic ruling on March 5 of this year, Federal District Judge Wayne Andersen in Chicago allowed the continuance of a lawsuit — "Donald Vance and Nathan Ertel v. Donald Rumsfeld, United States of America and Unidentified Agents." It is the first continuance of a torture case against a senior Bush official. The charge against Rumsfeld is that he was the authorizing source and therefore personally responsible for the torture in 2006 by U.S. forces in Iraq of American citizens Vance and Ertel, members of a private security firm. They had become unpaid informants for the FBI when they suspected their employer of illegal activities in Iraq. Nonetheless, they were imprisoned and tortured by American forces. As it proceeds before Andersen and a Circuit Court of Appeals, this case is likely to reach the Supreme Court. If the charge against Rumsfeld is upheld, could it lead to other lawsuits by tortured noncitizens, as well as American citizens, against others high in our chain of command? The ultimate official act that gave torture license to John Yoo, Donald Rumsfeld, Dick Cheney, et al. Was the signing by President George W. Bush of the Military Order of Nov. 13, 2001, setting up military commissions to try detainees suspected of terrorism. The president ruled: "It is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States courts." That opened the door to the dark side. Then came an action by Defense Secretary Rumsfeld described in the meticulously documented Philippe Sands's book, "Torture Team: Rumsfeld's Memo And the Betrayal of American Values" (Palgrave Macmillan). On Dec. 2, 2002, Rumsfeld signed an "Action Memo" with the head: "Counter-Resistance Techniques." Among them: "stress positions," "exploitation of phobias," "deprivation of light and auditory stimuli" and other acutely coercive interrogations forbidden at the time in the Army Field Manual. Said Rumsfeld at one point: "'I need responsibility to prosecute the war,' and the president said, 'You got it'" ("The Dark Side," page 215). The case against Rumsfeld now before Andersen in Chicago dates back to the end of 2006 and was followed by Rumsfeld's motions to dismiss. He is now being defended before this federal court by the Obama Justice Department. (The current president is opposed to looking back, all the more so because he has continued some of the Bush- Cheney practices.) Arguing for the plaintiffs is Mike Kanovitz of Loevy and Loevy in Chicago. The reason this case is the first against so high an American official to have survived so far is that the two plaintiffs are American citizens. In his 39-page March 5 ruling, Judge Andersen quoted from Justice Sandra O'Connor's decision for the Supreme Court in the 2004 Hamdi v. Rumsfeld case: "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of American citizens." But what about the great number of non-Americans who have been subject to the U.S. torture policy? Are any of them who have been held in Guantanamo, Afghanistan or in the CIA's secret prisons eligible to sue high-level American officials in our federal courts? In "The Trial of Donald Rumsfeld" (The New Press), Michael Ratner, president of the Center for Constitutional Rights, created a speculative indictment based on the Geneva Conventions' protection of prisoners (American and non-Americans) against "torture or inhuman treatment … outrages upon personal dignity, in particular humiliating and degrading treatment." Also, Ratner adds, our own "War Crimes Act of 1996 … makes it a criminal offense for U.S. military personnel and U.S. nationals to commit (such) war crimes as specified in the 1949 Geneva Conventions. Ratner adds that "Department of Defense … enforce the U.S. obligations under the laws of war … and that personnel promptly report incidents violating the laws of war and that the incidents be thoroughly investigated." Should not only Rumsfeld but also other high-ranking American officials pursuing our torture policy against non-Americans be charged with violating our own Torture Act and the international treaties we've signed? Charges to be pursued, of course, not by complicit military commissions but in our federal courts. This case against Donald Rumsfeld in Chicago should not be the end of the line for accountability up the chain of command, at any time, for war crimes, and not only those by Americans against Americans. (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.)