These days, not many observers from either side of the aisle will say publicly that they approved of the job he did as a wartime Secretary of Defense. Based on many reports from Beltway insiders, he is not the most well-liked of individuals to ever step foot into a White House cabinet meeting. He has exhibited a sense of arrogance bordering on disdain during interviews, both during and subsequent to his time in politics.
However, despite a number of character flaws, is Donald Rumsfeld legally responsible for the torture of US citizens? That is exactly what will be determined in U.S. District Court in Washington D.C. after Judge James Gwin decided to let a case addressing this question proceed. According to the A.P., Gwin wrote 'The court finds no convincing reason that United States citizens in Iraq should or must lose previously declared substantive due process protections during prolonged detention in a conflict zone abroad' in his ruling allowing the case to move forward.
Notably, this case, similar to an in-progress suit in Illinois, involves U.S. citizens serving as contractors and not foreigners and 'enemy combatants.' This makes the analysis different from that of high-profile cases from the middle of the past decade and shifts the focus onto whether a citizen's constitutional rights were violated. Assuming that the torture itself is proven (which, unfortunately, does not seem as if it will be much of a hurdle), the plaintiffs in these cases would need to prove that Rumsfeld was directly tied to this violation of constitutional due process rights and that he understood that these actions were over the line.
This is a relatively high hurdle, and surely a much more difficult theory of liability than one would see in a more garden-variety tort-based respondeat superior case. However it is worth considering the mood of the nation in addition to the pure legal analysis, and it would not be difficult to imagine a jury finding liability, particularly if Rumsfeld ends up taking the stand a la Jack Nicholson in a certain mid-90's film also featuring Tom Cruise.
Ultimately, and particularly with at least two cases proceeding in different districts, it also wouldn't be a shocker to see this issue make its way to the Supreme Court in a few terms depending on results. In the meantime, it is sure to be watched closely by the Obama White House, under which many of the prisoner holding and interrogation practices of the Bush era have largely continued without dramatic change.
I think this is particularly egregious because the plaintiff was known to be an Army veteran and his initial interrogators were Naval Criminal Investigative Service officers. Those investigators should have known that as a veteran, the plaintiff was probably entitled to Article 31(b) warnings, which are more extensive than Miranda warnings. Mark Harmon would never have stood for this.
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