A U.S. judge expressed skepticism on Friday that Defense Secretary Donald Rumsfeld could be held personally liable for the abuse of Iraqi and Afghan prisoners, including at Abu Ghraib.

U.S. District Chief Judge Thomas Hogan said that while torture is unacceptable, he was not sure whether the nine Iraqi and Afghan residents had a right to sue Rumsfeld in U.S. courts.

“What you’re asking for has never been decided by a court before,” Hogan said at a hearing in the high-profile case.

“How do you (limit) this right … so you don’t have a bin Laden or somebody bringing lawsuits here? How do you control that, and where does it stop, I guess is my problem,” he added.

The Iraqi and Afghan citizens, with help from U.S. civil-liberties lawyers, have sued Rumsfeld and several other senior military officials on the grounds they authorized abuse of detainees and didn’t take steps to stop it, violating the U.S. Constitution, international treaties and U.S. military rules.

The plaintiffs, ranging in age from 20 to 61, say they were stabbed, sexually abused, dunked in freezing water, and beaten while being hung upside down from the ceiling in Iraq’s notorious Abu Ghraib prison and other U.S.-run facilities.

None of the detainees have been charged with a crime. They are seeking monetary damages and a statement by the court that the action of Rumsfeld and other military officials was wrong.

The lawsuit also names as defendants Army Lt. Col. Ricardo Sanchez, the top commander in Iraq at the time; former Army Brig. Gen. Janis Karpinski, who ran the Abu Ghraib prison; and Army Col. Thomas Pappas, former head of intelligence at Abu Ghraib.

Lawyers for the U.S. government argued that Rumsfeld and the other officials who served at the time of the alleged abuse cannot be held personally responsible for carrying out official duties.

The Geneva Conventions and other international treaties that ban torture do not give plaintiffs a right to sue for damages, they said, and the protection against cruel and unusual punishment guaranteed in the U.S. Constitution does not apply to foreign citizens in other countries.

Allowing the lawsuit to go forward would create a new avenue of disruption for enemies of the United States, they said.

“What plaintiffs are arguing is an unprecedented global extension of the Constitution which would then apply to anybody, anywhere around the world that comes in contact with a U.S. official, even during war,” said Aryeh Portnoy, an attorney on behalf of the U.S. government.

Constitutional protections must apply to civilians who are in prisons under U.S. control because local laws don’t apply there, lawyers for the detainees said.

“Otherwise what we have is a rights-free zone,” said Lucas Guttentag, a lawyer with the American Civil Liberties Union.

Judge Hogan said torture is clearly against the law but he was reluctant to set precedent on the issue.

Source: Reuters