In the end, it all came down to the role of the federal courts. Despite "horrifying torture allegations" Chief Judge Thomas Hogan dismissed claims yesterday by former Afghani and Iraqi prisoners, who sought to hold high level military officials (including former Defense Secretary Donald Rumsfeld) responsible for alleged torture during their detention by U.S. forces.
Hogan had made his skepticism clear during oral arguments in December. Yesterday, he reaffirmed the "inescapable conclusion" that "the Constitution's reach is not so expansive that it encompasses these nonresident aliens who were injured extraterritorially while detained by the military in foreign countries where the United States is engaged in wars."
Hogan said that even though the Supreme Court found that the Guantanamo Bay detainees were within the federal court's jurisdiction, that decision did not apply to these plaintiffs. The reason: because the high court's decision was only looking at the detainees' right to file a habeas petition, not their broader constitutional right to sue in U.S. courts.
The 58-page opinion also made clear that taking on such a case would force the judiciary to cross a clear boundary best reserved for other branches of government. A "legal determination invariably would place the Court in the position of inquiring in to the propriety of specific interrogation techniques...It is at this point of divergence that the judiciary most risks intruding into military and foreign affairs."
At least there's one thing Rummy can smile about.