Iraq and Afghanistan Detainee Opinion Online

by Julian Ku

For some reason, the U.S. District Court for DC has not yet posted a copy of Judge Hogan’s opinion dismissing lawsuits against Donald Rumsfeld and various U.S. military officials for abuse and torture in Iraq and Afghanistan. Thanks to Paul Stephan, I finally got a copy of the opinion, styled Iraq and Afghanistan Detainees Litigation, which I am posting here. Unfortunately, I have been tied up with other stuff (mostly travelling to D.C.), but a cursory read establishes two reactions:

(1) Judge Trager’s opinion in Arar v Ashcroft refusing to infer constitutional Bivens claims by non-residents who are overseas was followed here by Judge Hogan. As some of you recall, I think this is the right result (see my essay here for my argument).

(2) Most of the detainee civil cases seeking damages against Rumsfeld and other U.S. military officials face an enormous nearly insurmountable obstacle called the Westfall Act. This statute, which has nothing to do with foreign affairs or international law, nonetheless results in granting government officials broad immunity for actions taken within the course of their official duties.

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