Representing nine victims of U.S. Army torture in Iraq and Afghanistan, the ACLU and Human Rights First filed these lawsuits in 2005 against then-Secretary of Defense Donald Rumsfeld and three senior Army officers, alleging that they were personally responsible for the torture of detainees in U.S. military custody and seeking money damages from them personally. The lawsuits were filed in various states to obtain personal jurisdiction over the defendants; we then asked the Judicial Panel on Multidistrict Litigation to consolidate the cases for pretrial proceedings, and the Panel assigned them to then-Chief Judge Hogan of the U.S. District Court here in D.C.
The defendants moved to dismiss the case on various grounds, principally that we had not alleged facts showing that they were personally responsible for our clients’ injuries, that international law (such as the Geneva Conventions) does not provide a basis for private lawsuits, and that they are immune from liability under U.S. law. In 2007, the court rejected our claims and followed circuit precedent by holding that aliens abroad cannot claim the protections of the Constitution and that the Geneva Conventions and international law do not create a basis for private lawsuits.
We appealed, but the court of appeals affirmed, holding that (1) aliens residing abroad have no constitutional rights, (2) the defendants are entitled to qualified immunity, (3) allowing these claims to proceed would “disrupt and hinder” our armed forces at war, and (4) the Alien Tort Statute and the Declaratory Judgment Act create no substantive rights.
