Ali v. Rumsfeld Update: Rumsfeld Invokes Immunity

by Julian Ku

Last year the ACLU and Human Rights First sued Secretary of Defense Donald Rumsfeld for responsibility in the abuses at Abu Ghraib, Afghanistan, and Guantanamo Bay. After much legal wrangling, the parties have finally agreed on a forum (the U.S. District Court in Washington D.C.). Monday, Rumsfeld filed this motion seeking to dismiss the lawsuit.

As I argued in a symposium essay here, the hardest part of the plaintiffs’ case will be maintaining their claims against Rumsfeld for violations of customary international law. While government officials have limited immunity from violations of federal statutes or the Constitution, there is good reason to believe they have absolute immunity from claims based on customary international law. As I further argued here, even if the plaintiffs somehow got past the immunity bar, Rumsfeld has pretty solid defenses against the customary international law claims because he and the Defense Department have broad deference in the interpretation of customary international law.

Assuming the court follows Judge Trager’s decision in Arar v. Ashcroft (see post below) Rumsfeld should win this motion and get the case dismissed. But there will be appeals and this case should survive a few more years at least.

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