ROBERT SIEGEL, host:
Now the legal dimension we mentioned. In Washington, lawyers argued about whether Rumsfeld and other top military leaders can be held responsible for the abuse of detainees in Iraq and Afghanistan.
NPR's Ari Shapiro has that story.
ARI SHAPIRO: The plaintiffs in this case are nine former detainees. Each was held in a U.S.-run prison overseas and released without charge. Each says he was tortured by his American captors. The court brief has graphic descriptions that are now almost routine in detainee abuse cases - beatings, sexual abuse, electrical shocks and so on.
Although the descriptions are familiar, the question before the judge in this case is different - can foreign citizens who've been tortured by the military hold American officials accountable in U.S. court?
The government says absolutely not. Attorney C. Frederick Beckner told the judge foreign aliens abroad enjoy no constitutional rights. Judge Thomas Hogan asked would you take the same position if the claim was genocide on the part of the military? You're saying there's no remedy for the people affected by those actions because their foreign aliens?
Beckner answered our position is not that these plaintiffs have no remedy and the U.S. can abuse them. He said more than 100 service members have been court martialed for detainee abuse. The military justice system is the appropriate place to litigate this.
When attorneys for the detainees took the stand, Judge Hogan sounded skeptical. He asked, if foreigners can sue in American courts, what's to stop bin Laden or someone else from coming in here to court and saying I've been threatened with murder? If you extend the private right of action to nonresident aliens, where does it stop?
Lucas Gutentag of the ACLU said prohibitions against torture must apply to prisons under U.S. control. He pointed out that the U.S. military has made itself immune from prosecution in Afghan and Iraqi courts. So, he said, the constitution must apply, quote, “otherwise what we have is a rights free zone because no law governs.”
On the courthouse steps after the hearing Guttentag was asked whether he could point to any other case that said foreigners overseas have rights under the U.S. Constitution.
Mr. LUCAS GUTENTAG (ACLU): A case like this has never been squarely presented because there's never been the kind of overwhelming evidence of systemic abuse based on orders and authorizations by the secretary of defense and other high level officials.
SHAPIRO: He believes that when the Supreme Court ruled in Rassoul v. Bush that U.S. courts have jurisdiction over Guantanamo Bay, it opened the door for American laws to apply at U.S. run prisons in Iraq and Afghanistan as well.
When Guttentag made that claim in court, government attorney Beckner sounded incredulous. Beckner told the judge the plaintiff is asking you to rule that these independent democracies are sovereign territories of the United States. At the end of the hearing, Judge Hogan made some comments from the bench. Detainee attorney Deborah Pearlstein said she found them gratifying.
Ms. DEBORAH PEARLSTEIN (Attorney): They were to the effect that it's a shame that we're in a court of the United States talking about whether there is any remedy for rights that everyone agrees are fundamental, the right against torture.
SHAPIRO: True. But the judge followed that by saying there is a substantial difficulty in recognizing the claims of non-citizens held in other countries. He said he hopes to reach a decision in the case soon.
Ari Shapiro, NPR News, Washington.
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