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Weighing the detainees' case

December 14, 2006

Re "Ex-detainees seek right to sue Rumsfeld," Dec. 9

The Times quotes Deputy Assistant Atty. Gen. C. Frederick Beckner III as arguing to U.S. District Judge Thomas F. Hogan that allowing suits by victims of torture and genocide would have the effect of disrupting and "potentially chilling" the military's ability to conduct wartime operations. It was to chill such wartime conduct that the Senate ratified treaties outlawing it, which makes those treaties "the supreme law of the land" under Article VI of the Constitution.

Have the moral and legal coordinates of the Department of Justice drifted so far under the leadership of Atty. Gen. Alberto Gonzales that a deputy assistant attorney general wouldn't know why civilized nations have outlawed torture and genocide?




Judge Hogan errs in claiming that noncitizens held in foreign detention centers may not have standing to sue in U.S. courts. Article I of the Constitution states: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." This statement is inclusive and allows anyone, anywhere, who is denied habeas corpus to legally pursue claims for harms subsequently suffered. The only question is, were the Iraqi and Afghan detainees invading the U.S. or participating in a rebellion here? If the answer is no, then the actions of the U.S. and its agents may be challenged in our courts.

Because Iraqi detainees obviously were neither invading nor participating in a rebellion, they do have standing and must be allowed to pursue their lawsuit. To do any less would constitute the worst form of legislating from the bench -- invalidating the Constitution.


Portland, Ore.

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