Dafydd, however Judge Hogan rules, his decision is not end of it all, or am I missing something here? Can't his decision be appealed?

Well said.

Alex, whether it's the "be all and end all" is not the point (for me anyway), but rather the fact that he could potentially come to that conclusion at all -- scary stuff.

Scary because "scary stuff" has a nasty habit of becoming less scary over time; then next thing you know you're nothing more than a thigh or ulna bone on the Morlock's barbie.

Dafydd,

You are far too Naive than you should be at this time in your life. Being a late bloomer is as natural as being an early bloomer; however, such naïveté in yore posts recently reflect a dreamer akin to Jimmy, Bill, or Al at best.

Like Reagan, Bush "43" doesn't get a lot of choices at this point, and in fact..."43" gets less.

America was lucky to get past Carter. Luckier still to get past two terms of Clinton. Seriously, luck and chance have ran out, and the recent elections prove my rather simple point/s.

Karmi

Let's sue Hogan for his decision! (Sauce for the goose...)

Judge Hogan is obligated to struggle over this. Cabinet members only enjoy "qualified immunity". Only THOSE PERFORMING JUDICIAL FUNCTIONS, legislators and the President have absolute immunity. See, Harlow v. Fitzgerald, the latest Supreme decision on the issue.

(Pointing out the obvious, that the lowliest prosecutor or magistrate has the same immunity as the President or a Senator. Lawyers rule the legal system.)

Again as to Judge Hogan, he truly has to do a fine analysis of the allegation under Harlow v. Fitzgerald linked above. The case does not give him the choice of summary dismissal.

P.S.

The URL did not transalate into a link but if you copy and paste it (without the commas)in your address bar it works.

Nk:

First, I maintain that the president's power as Commander in Chief during wartime, relating entirely to battlefield actions, is at its zenith.

Second, there is no evidence whatsoever, nor does the article indicate that plaintiffs have even essayed to present such evidence, that Secretary Rumsfeld, in carrying out his duties to promulgate rules for interrogation, said or wrote anything that would rise to the standard that the Court seems to be discussing in Harlow.

Admittedly, I'm not a lawyer, and I just now read it for the first time. But in that case, there appears to have been a fairly well-defined conspiracy against Fitzgerald that included at least one memo saying he had to be got rid of because he was going to blow the whistle on cronyism within the White House... and the only question is whether Harlow himself was a part of that conspiracy.

In this case, the only allegations are:

1. That the actions of the miscreants at Abu Ghraib violated the "constitutional rights" of enemy combatants captured on a foreign battlefield and held in a POW camp on foreign soil -- which itself is absurd on its face, as they have no constitutional rights;
2. And that Rumsfeld personally approved the naked games and sexual escapades that it pleases the ACLU to call torture... for which, again, there is not a shred of evidence.

In fact, all available evidence indicates that he did not know, nor was what they did acceptable: the violations came to light in the first place because the Army found out about them, and LG Ricardo Sanchez -- another defendant -- actually sent MG Antonio Taguba to Abu Ghraib to find out what the heck was going on there. Taguba wrote the "Taguba Report," which is where Sy Hersh first heard about the bizarre behavior:

The Taguba Report is the common name of an official article 15-6 military inquiry conducted in 2004. Lieutenant General Ricardo Sanchez, the senior officer in Iraq, appointed Major General Antonio Taguba to open an article 15-6 inquiry into the conduct of the 800th Military Police Brigade.

The report was harshly critical of the soldiers and officers at Abu Ghraib, and many were subsequently convicted of crimes under the UCMJ and are now serving time in federal calaboozas.

(Hersh's first article describing the situation was intentionally false and defamatory; he claimed that the Army was trying to cover it up, but he had undercovered the truth. In reality, it was the Army that discovered and investigated it, and the only reason Seymour Hersh found out about it was that he read the Taguba Report. Hersh was subsequently humiliated when the president quickly declassified the report, which proved Hersh to have been lying from the start.)

All of this is well known and on the record. Nothing in the article indicates that the plaintiffs dispute any part of it.

So even if Judge Hogan has to apply Harlow, it should still have been a slam dunk: there is nothing in the record that rises anywhere near the standard enunciated by the Court.

Rumsfeld didn't engage in a conspiracy to do anything; he develped a set of rules for interrogations that took into account all relevant statutes and constitutional prohibitions (rules that the sadists at Abu Ghraib conspicuously ignored, which is why they're making big rocks into little rocks at Leavenworth, or wherever they are).

Even if those rules for interrogation were subsequently changed or found to be wanting, that still doesn't imply any sort of conspiracy to deprive anyone of his rights... it's nothing more than a policy dispute; no more than if the presidential counsel issues a legal opinion that is subsequently rejected by the courts.

Conspiracy requires that the actor know he is violating some prohibition and does it anyway... terrorist plaintiffs can't be allowed to sling around the word and drag the secretary of defense through a trial every time they disagree on policy, preferring instead to be left free to kill Americans.

I insist, to agonize over this case is manifestly absurd and indicates that Judge Hogan has almost completely lost his mind.

(It will only be fully completed if he rules that the case can proceed. As far as I'm concerned, that would be grounds for impeachment and removal from his federal judgeship for manifest unfitness for office. Not that the Democrats would ever do so; they would cheer and applaud -- until the same standard was applied to a subsequent Democratic administration.)

Dafydd

Nk:

By the way, here is how you make a link in a comment on this blog:

1. Type the words you want to appear in the comment; these words will be the link. In this case, you could type Harlow v. Fitzgerald;
2. Select those words in the comment text-box;
3. Click the little button above the text box that is labeled link; a link box will appear;
4. Paste (or type) the target URL into the link box and press Enter.

I have done this for you on your comment, but in future, it's pretty easy to do it yourself. That solves the problem of URLs not "translating" into links!

Dafydd

Dafydd,

From the AP article it seemed to me a 41(b) motion to dismiss for failure to state a cause of action upon which relief can be granted. In such a motion the judge must accept all well-pleaded allegations of fact as true and rule, as a question of law, whether the plaintiff could possibly prevail if allowed to prove all he alleged. He cannot consider actual evidence from either side. It's a very difficult motion to win and the plaintiff is allowed to replead.

Harlow is important in this case because it affirmed Butz v. Economou which denied absolute immunity to cabinet members on the grounds that they are only surrogates of the President who enjoys absolute immunity. Only the Supreme Court can overule it. All (honest) lower court judges can do is pass the buck.

Basically, I think the AP, as the left's lapdog it has become, has optimistically slanted the story.

Thank you for the linking advice.

Nk:

In such a motion the judge must accept all well-pleaded allegations of fact as true and rule...

Of fact but not law: the judge isn't obliged to accept the plaintiffs' claim that the SecDef doesn't have immunity in this case.

What allegations of fact would there be? Do the plaintiffs allege that Don Rumsfeld called up Lynndie England person to person and told her to strip the prisoners naked and fondle their genitals?

What they did was completely against the rules for interrogation and for the treatment of prisoners; that's why a bunch of them are in the hoosegow. How could Rumsfeld be in a conspiracy to deprive plaintiffs of their putative constitutional rights -- when the people who actually did it defied Rumsfeld's orders in so doing?

I can't imagine any factual situation they could allege, unless they made up something so ludicrous that the judge would have to know it was a false filing.

Dafydd

Dafydd:

"What allegations of fact would there be? Do the plaintiffs allege that Don Rumsfeld called up Lynndie England person to person and told her to strip the prisoners naked and fondle their genitals?"

They would have to, pretty much, but it would not be enough. They would need to allege that the Secretary ordered (or possibly [weasel-word] "authorized") abuse KNOWING that it was in violation of the law. (Which BTW I don't think he did just in case there's any doubt about whose side I'm on.)

See this more balanced article from The Christian Science Monitor.

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