December 8, 2006

Suing the Secretary and Other In-Jokes

Hatched by Dafydd

We've known for a long time that federal judges are prone to "grow in office;" in fact, I believe the very term itself was coined (wrongly) to describe the career of Justice David Hackett Souter... who was, as few now remember, a flaming liberal Republican, in the mold of his mentor, John H. Sununu -- former New Hampshire governor and White House chief of staff under President George H.W. Bush -- long before being nominated to the court. (In fact, I'm sure that's why Sununu and liberal Republican New Hampshire Sen. Warren Rudman persuaded Bush-père to nominate Souter in the first place.)

Still, it's always sad to see it happen. Especially when it's a Reagan appointee who has, like Topsy, the little girl from Uncle Tom's Cabin, "just growed." It happened with Justice Sandra Day O'Connor.

And now it seems we're in imminent peril of it happening again... this time with potential dhimmi of the year, Judge Thomas F. Hogan, appointed by Reagan to the D.C. Circus Court in 1982 -- and 24 years is a lang, lang time a-growin'. For if Hogan rules the way the Associated Press, at least, expects him to rule, he could single-handedly do more damage to America than another 9/11 would.

The ACLU is suing, on behalf of nine enemy combatants (now there's a shock!), former Secretary of Defense Donald Rumsfeld -- along with retired Lt. Gen. Ricardo S. Sanchez, who resigned because he thought Abu Ghraib destroyed his career, even though he had nothing to do with it; disgraced Brig. Gen. Janis L. Karpinski, who was directly blamed for not taking control of her troops; and Col. Thomas M. Pappas, the senior intelligence officer at Abu Ghraib, who testified against others in exchange for immunity.

But the worst part is that the suit isn't against the Office of the Secretary of Defense or the United States Army. Rather, these four defendants are being sued as individuals -- for exercising their normal official duties.

Judge Thomas "Huck" Hogan appears to be dithering, flirting with the idea of allowing any former POW, enemy combatant (lawful or unlawful), terrorist, or family of any person killed by an American soldier to personally sue the soldier, jailor, intelligence agent, commanding officer, cabinet secretary, CIA director, or president of the United States that the plaintiff deems responsible for the "victim's" inconvenience.

The ACLU -- or CAIR -- could drag not only every government official through the court system, based entirely upon the plaintiff's disagreement with administration policy, it can then extend the suit to hundreds or thousands of soldiers in the field, demanding they all be shipped back home to be witnesses and defendants in civil suits that amount to terrorism by barratry.

"Huck" Hogan himself seems to understand the dogs of judicial war he nevertheless appears poised to unleash:

Foreigners outside the United States are not normally afforded the same protections as U.S. citizens, and Hogan said he was wary about extending the Constitution across the globe.

Doing so, he said, might subject government officials to all sorts of political suits. Osama bin Laden could sue, Hogan said, claiming two American presidents threatened to have him murdered.

"How do you control that?" Hogan asked. "Where does it stop? Does it stop at the secretary of defense? Does it stop at the president? How does this work?"

Yet even so, there he stands, pointing a judicial gun at the head of American sovereignty, his finger twitching on the trigger...

Hogan questioned the scope of that immunity. He said freedom from torture is a basic right accepted by the United States and all civilized nations.

"Would you take the same policy if the argument was one of genocide?" Hogan asked. "Are you saying there could be no inquiry done?"

But of course, there has never been a shred of evidence offered that Rumsfeld even knew of the abuses (which it pleases ACLU lawyer Paul Hoffman to call "torture") at Abu Ghraib, let alone "encouraged and directed that torture," as he casually claims. So what is the point? First and most obviously, the ACLU simply hates Rumsfeld's policies so much, they seek to destroy him as a person.

But the broader political purpose of the suit is quite clear, and it's not to get abstract "justice" for the nine former prisoners: the function of the ACLU's lawsuit is to reach out and wrench American military and anti-terrorism policies more in line with those of Sen. Harry Reid (D-Caesar's Palace, 100%) and Rep. Nancy Pelosi (D-Haight-Ashbury, 100%) -- or perhaps former (thank goodness) President Jimmy Carter (D-Venus).

The intent is to leave all officials looking nervously over their shoulders, second-guessing every action -- will the ACLU, CAIR, the ADL, and every other extremist group find it acceptable? Since the answer will inevitably be No, some radical group or other is sure to find illegalities and violations in every conceivable action, the only safe thing to do is not to act at all.

And that's precisely what the ACLU wants, a "Hippocratic world": a world where all defensive action is forbidden, and every official cares only about doing no harm -- to anyone.

Thus does the politics of personal destruction make common cause with terrorism by barratry.

And the nation stands at the brink of disaster because of the inability of a Reagan-nominated federal appellate-court judge to slap this improper lawsuit down after the first day's hearing. "Huck" cannot seem to understand that whatever is the proper remedy for some horrible, policy-driven crime against humanity (such as genocide), it cannot arise from the federal courts... because any regime that would actually undertake, say, a "Final Solution to the Moslem problem," would certainly, as its very first act, disempower or even dissolve the entire civilian judicial system -- just as the Third Reich did.

Such a horrific policy implies a complete and total subversion of American society and government, something we never saw even in the depths of the Civil War or World War II, and which not even the American Criminal Lobbyist Union has had the audacity to claim. (Plenty of Islamists have claimed it; but they also claim that Allah commands them to exterminate the Jews, and they have also propelled Hitler's Mein Kampf -- in Arabic translation -- to the top of the Middle East bestseller list; so I don't see them as particularly credible on the subject.)

Judge Hogan has not yet ruled (at the time I write this), and it's still possible he will come to his senses and realize that it's not the duty of the courts to tell the American military how to wage war -- or how to punish those who violate military law -- or even to award civil damages to people who were discommoded by American foreign and anti-terrorism policies.

If Donald Rumsfeld had punched out someone in a ballroom blitz (or if he had sexually harassed a subordinate), it would be perfectly appropriate to sue him as an individual; such actions are committed by the individual, not the office. But to be able to sue Donald Rumsfeld, or Les Aspin, or Bill Cohen, or any other government official for the official acts of his office, pursuant to the express policy of the president of the United States (often acting in his capacity as Commander in Chief of the armed forces), is a prescription for complete collapse... the "Hippocratic world" of the ACLU.

Let us hope that Judge Hogan hasn't "grown" quite that far. Yet.

Hatched by Dafydd on this day, December 8, 2006, at the time of 4:49 PM

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The following hissed in response by: Alex

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?

The above hissed in response by: Alex [TypeKey Profile Page] at December 8, 2006 6:05 PM

The following hissed in response by: Rod

Well said.

The above hissed in response by: Rod [TypeKey Profile Page] at December 8, 2006 6:24 PM

The following hissed in response by: ShoreMark

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.

The above hissed in response by: ShoreMark [TypeKey Profile Page] at December 8, 2006 9:01 PM

The following hissed in response by: KarmiCommunist


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.


The above hissed in response by: KarmiCommunist [TypeKey Profile Page] at December 8, 2006 9:33 PM

The following hissed in response by: matataki

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

The above hissed in response by: matataki [TypeKey Profile Page] at December 9, 2006 6:33 AM

The following hissed in response by: nk

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.

The above hissed in response by: nk [TypeKey Profile Page] at December 9, 2006 7:17 AM

The following hissed in response by: nk


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

The above hissed in response by: nk [TypeKey Profile Page] at December 9, 2006 7:21 AM

The following hissed in response by: Dafydd ab Hugh


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.)


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at December 9, 2006 2:58 PM

The following hissed in response by: Dafydd ab Hugh


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!


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at December 9, 2006 3:07 PM

The following hissed in response by: nk


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.

The above hissed in response by: nk [TypeKey Profile Page] at December 9, 2006 4:22 PM

The following hissed in response by: Dafydd ab Hugh


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.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at December 9, 2006 4:48 PM

The following hissed in response by: nk


"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.

The above hissed in response by: nk [TypeKey Profile Page] at December 9, 2006 5:33 PM

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