John Locke's 2nd Treatise - My Interpretation

Locke bases his arguments regarding political power and laws on his belief that early man’s initial existence was in a state of nature, where all are equal in authority, none having the right of dominion over another, and all enjoy the natural right to perfect liberty¹.  This state of nature is governed by the laws of nature.  He asserts the laws of nature, governed by reason, require that each act in a manner consistent with his self-preservation, and do no harm to another’s life, health, liberty or possessions².  He further explains that if a man is in competition with another, he is obligated to see to his self-preservation first, and when not in competition with another it is his duty to see to the preservation of others³.  When all in a state of nature obey the laws of nature, peace is assured.  In a state of nature, with all men equal and none having superiority over the other, each individual has the natural right to justly punish those who are in violation of the laws of nature, giving natural law force, as those who have violated a law have set themselves outside of the law and is a danger to mankind⁴.  This is how, in a state of nature, one comes to have lawful power over another, and may do harm to him for reparation and restraint, according to calm reason and the dictates of conscience⁵.

Locke identifies the problem with this execution of the natural laws when he acknowledges that it is unreasonable for the one wronged by a violation of the law by another to be the one executing the law, seeking redress and restraint through punishment, because they are likely to be ruled by their passions and not dispassionate reason.  Locke then asserts that the correct remedy is civil government⁶.  He goes on to state that in cases of absolute monarchy, where one person has the authority and liberty to judge in his own cases, and may do to the citizens whatever he wishes, it would be better to revert back to a state of nature than to suffer the rule of such a civil government⁷.   He reaches this conclusion as a result of how he sees absolute monarchs.  He sees them as being in a state of nature in relation to other sovereigns, and in a state of nature in relation to their subjects, because they are not a part of a political body, but are outside it since they do not consider themselves to be a part of the community of sovereigns or their subjects.  A state of nature is where all men exist until they willingly consent to make themselves a part of a political community or society⁸.  Locke then ties all of the aforementioned principles together, with the principle of consent being paramount for civil society, when he states, “The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in the commonwealth, nor under the dominion of any will, or restraint of any law, but what the legislative shall enact according to the trust put in it.”⁹ (Emphasis added) One of the most important aspects of the legislative power, according to Locke, is that it is limited to the public good of the society^10.   Locke explicitly states that the power of enacting laws granted to the legislators can, because they’ve been granted through trust in the first place, be revoked by the people and given to new legislators when the trust has been violated¹¹.  It is because of this that the sovereign, who has the granted, legitimate right of making laws, enters into a compact with the rest of society to see to the protection of the property of all the subjects may, by violating the trust put in him and failing to pursue the public good, have the power and authority of lawmaking removed from him and granted to another. 

As can be seen, Locke’s foundation for government and law is one based on his interpretation of natural rights and natural laws that lead him to some very important conclusions.  First, the power and authority to act to the limits of one’s capabilities is held equally by all individuals in a state of nature, and each person is obligated by natural law to direct that power in a way that promotes and protects one’s health, life, and property.  Second, in order to move away from a state of nature and its attendant risks and dangers to one’s self-preservation, people choose to enter into a compact and create a civil government where they willingly grant some of their natural rights, power, and authority to a commonwealth (the body of people as a whole), which in turn cedes those rights to a sovereign who will be supported in the execution of civil law and who, in return for this authority, enters into an agreement with the populace to use the authority for the benefit of the common good.  Third, the authority granted, because it is a natural possession of the people, may be taken back by the people if they believe the sovereign is in violation of the agreement, and then give those powers to another. 

The above three points deal specifically with the transfer of natural rights (inherent individual power) from the people and to a sovereign, under natural law, through agreement.  As can be extrapolated from Locke’s basic foundation, the form of a sovereign power is irrelevant.  The above can be applied satisfactorily to any form of government whether a democracy, monarchy, or aristocracy.  In each form of government the people have the natural right, as individuals to leave civil society and enter into a state of nature/war against the sovereign and the rest of society, or as a collective to remove their granted powers from the sovereign by any means necessary and grant them to another.  Furthermore, because of the nature of the sovereign’s responsibility to execute laws, the sovereign will have more resources at his disposal, operating under his direction and at his discretion, than anyone, or any few members of the community with which he is in compact with.  This will create an imbalance of power such that it is likely that only when a majority of the community is willing to revoke their power and replace the sovereign will it happen.  Until that point is reached, the people, by not revoking their granted powers to the sovereign, are giving tacit approval for the sovereign and would need to be seen as opposing any who seek to enter into a state of war against the sovereign.  This requirement of a majority, in either direction, is what makes the principles Locke espouses, at their core, democratic in nature even while not requiring a democrat form for the government.

At this point it needs to be explained that two distinct powers, previously discussed, are held by a sovereign: legislative power and executive power.  One power, the executive, is that power to act according to natural rights and natural laws, in a manner that promotes self-preservation (of the community and its members), and it exists both in a state of nature and in a state of civil society¹².  The other power, the legislative, is the power to make laws that restrict action in order to promote the self-preservation of all, for the common good, by determining how executive force is to be applied in the furtherance of that end, and only exists in a state of civil society as a power that comes into existence as a result of the social contract between the people and the sovereign¹³.  These powers may be held jointly by one, as is the case in absolute monarchies, or they may be held by two or more distinct civil authorities as they are in the United States. 

Upon the agreement of a community of individuals to create a commonwealth, there is a created, second power that comes into existence at the same time as the legislative power: the federative.  As an individual has a natural right to see to his self-preservation, so too does a commonwealth as an individual entity, or construct, have the same natural rights to see to its self-preservation.  The power of a commonwealth to exercise these extrapolated natural rights are called Federative and is an acknowledgment that as a community, separate from other communities, having only entered into a compact amongst themselves, excluding outsiders, it is still in a state of nature in relation to those outside powers, whether they be individuals or other commonwealths¹⁴.   This direct quote most eloquently and succinctly states both the limits and extent of the federative powers.  “This therefore contains the power of war and peace, leagues and alliances, and all the transactions, with all persons and communities without the commonwealth…”¹⁵ The execution of federative powers, being such that they are the powers of the commonwealth as a whole, taken as a single entity, and for the common good, may at times operate outside of any specific laws or even in violation of laws already agreed upon.  This conflict, though more readily apparent in the exercise of federative power than executive because of the scrutiny under which it operates, is more prone to being interpreted in the moment by the immediate passions of the individuals of the commonwealth, with their accompanying biases, than an act that is perceived to be just because it is done in accordance with, and therefore restricted by, previously enacted positive law.

The Wall Street Journal reported, on October 12, 2011, the foiling of an Iranian attempt to bomb a fictitious restaurant where a Saudi diplomat was alleged to spend time, as well as the Saudi and Israeli embassies in Washington, D.C¹⁶.   The U.S. has already issued sanctions as a result of the event, and has stated Iran would be held accountable for this attempted terrorist attack.  The U.S. has several options through the use of executive and federative power as a response goes.  How the public perceives the response in terms of promoting the common good and self-preservation will be a key factor in the decision-making process to determine what action should be taken.  One possible response, extreme though it is, would be to retaliate with a full scale nuclear strike, forever eliminating Iran as a threat to the commonwealth.  Another possible response would be for the commonwealth to issue a verbal rebuke and censure the Iranian government for its actions, which could easily be seen as the opposite extreme.       

While some may see an inherent tension between the exercise of executive and federative power and the principles of democracy, a thorough understanding of Locke’s foundation should remove that concern.  Democracy is defined as “Government by the people; that form of government in which the sovereign power resides in the people as a whole, and is exercised either directly by them (as in the small republics of antiquity) or by officers elected by them.”¹⁷   It has already been shown that, according to Locke, sovereign power is a natural right of each individual, and though some of that power and authority (the right to act) have been ceded through the social contract and granted, for a time and for a specific end, to an external authority, those rights may be revoked by the individuals, and in effect by the community at large when it is determined the sovereign is in violation of his obligations under the agreement.  This is the core of democracy.  The majority may choose to support or oppose anything done by the sovereign in the name of the people by way of exercising the natural rights inherent in the individuals that make up the commonwealth, and if the majority opposes the sovereign then the majority may replace him.  Unfortunately, this interpretation is one of ideals and not one of practicality.  It is entirely possible, through technology and positive law, that a sovereign acquire so much power that a mere majority cannot practically bring enough counter force to bear in order to remove a sovereign.  Reason would seem to imply that a sovereign with such an overabundance of power that could be directed against the people, but does not, would still have the majority of support from the people.  In those cases where the people perceive that a sovereign has abused the use of his acquired power, and it is impractical, or even impossible, due to the power imbalance between the sovereign and the people, for the people to take back their power and give it to a different sovereign, then democracy has failed.

On November 30^th, 2011, the United States, through the use of executive/federative powers, exercised its prerogative power by killing, without due process, an American citizen who had chosen, as evidenced by his own actions, to enter into a state of war against America as a whole: Anwar al-Awlaki¹⁸.  This action has resulted in an ideological dispute between those who support the actions of the sovereign, who they believe acted for the common good even though it was opposed to standing law requiring the sovereign to refrain from killing one of its own citizens without due process of law, and those who believe the killing was not conducive to the common good because it was in violation of a firm, Constitutional, restriction the people had placed on the sovereign, symbolizing a disrespect for the people who make up the commonwealth and a willingness to violate the agreement for self-serving political gains, or perhaps other reasons unknown to this writer.

On prerogative power:  Prerogative power is nothing more than the power of a sovereign to execute power through an act deemed to be in the best interests of the commonwealth regardless of law¹⁹.  This power is designed to eliminate the legislative requirement to foresee every possible eventuality or circumstance, and the best way to deal with those specific circumstances, and enact positive law for the direction of executive power when and if it finds itself in those situations, and because of the understanding that it is impossible to predict all possible future events, the power may be exercised to such a degree that it can violate standing law, as it is argued by some, was the case when the U.S. killed al-Awlaki²⁰.  The same argument might be used if the U.S. were to, in retaliation against Iran, initiate a full scale nuclear strike against the country.  Public perception within a commonwealth is the key to whether or not an executive or federative action is seen as one that promotes the common good or as one that is in opposition to it. 

At this point a question must be asked, based on everything that has come before.  When is the right time for a person or commonwealth to exercise force against the sovereign, to replace him with one more to their liking and who they believe will serve their common interests?  Locke’s response would be that force may only be used against another unlawful and unjust force, and to apply force for any other reason would be unjust and warrant condemnation and retaliation from all within the commonwealth²¹.  This is not to say that in each instance where the sovereign acts in a manner seen as being unlawfully or unjustly against the preservation of the interests of the commonwealth that the people of the commonwealth will, or should, rise up and replace the sovereign, perhaps through a bloody and long lasting revolution.  Human nature, being what it is, will allow the people to put up with errors and even a few instances of blatant injustice, and will only act with revolutionary force after having been forced over a long period of time to endure suffering and consistent abuses by the sovereign, and after the people have determined there exists the evil intent of the sovereign to actively abuse and make them subject to his arbitrary use of power²².  In short, regarding revolution and civil war, a dispute between the sovereign and a segment of the commonwealth that is of great importance, and where the law is ineffectual, or nonexistent, the only proper judge is the body of the society, and if the sovereign refuses to abide by a judgment against him, he and the commonwealth then enter into a state of war against each other²³.

As has been shown, there is a particular circumstance that can cause the failure of democracy as a result of the tensions between the commonwealth and the sovereign.  The circumstance, as has already been stated, is one in which a sizeable majority of force available is controlled and directed by the sovereign against the people, leaving the people practically helpless against the sovereign.  The only way this can be avoided is by the vast majority of the populace having the sovereign under constant and close scrutiny, with remedies under law that allow the people to act quickly and decisively to remove a sovereign seen as unjust, whether in the form of the legislators, the executive, or both.  Also, from the beginning, there must be a system in place, and maintained, that keeps the sovereign from amassing force assets to a degree that the people are at risk of being under the arbitrary rule of a sovereign without having the practical ability to level an equal force in return.  Only then will a sovereign rightly question himself as to whether or not he wishes to enter into a state of war against the people.  The problem is entirely one of “balance of power” between the sovereign and the people.  By dividing the rights, responsibilities and obligations of a selected sovereign; by dividing the legislative powers, the executive powers, the judicial powers, and perhaps other powers amongst various individuals whose primary charge is the self-preservation of the commonwealth, even if action for that end is opposed to their own self-preservation, a commonwealth has a system in place well suited for its purpose.  Unfortunately, the system described is not enough by itself.  Unless the people are also vigilant and aware of the acts of the sovereign, and it is possible that this may not happen as a result of apathy or ignorance, the sovereign may be able to acquire enough tools of force that by the time the people realize they are powerless to stop an unjust sovereign, it will be too late.

Endnotes-Citations

1.      Second Treatise. Chapter 2. Section 4. P. 3.

2.      Second Treatise. Chapter 2. Section 6. P. 4.

3.      Second Treatise. Chapter 2. Section 6. P. 4-5.

4.      Second Treatise. Chapter 2. Section 7. P. 5.

5.      Second Treatise. Chapter 2. Section 8. P. 5.

6.      Second Treatise. Chapter 2. Section 13. P. 8.

7.      Second Treatise. Chapter 2. Section 13. P. 9.

8.      Second Treatise. Chapter 2. Section 15. P. 9-10.

9.      Second Treatise. Chapter 4. Section 22. P. 15.

10.    Second Treatise. Chapter 11. Section 135. P. 82-83.

11.    Second Treatise. Chapter 13. Section 149. P. 92.

12.    Second Treatise. Chapter 12. Section 144. P. 89.

13.    Second Treatise. Chapter 12. Section 143. P. 89.

14.    Second Treatise. Chapter 12. Section 145. P. 90.

15.    Second Treatise. Chapter 12. Section 146. P. 90.

16.   Wall Street Journal. Wednesday, October 12, 2011. P. 1. Print.

17.    Oxford English Dictionary.  Oxford University Press.  Second edition.  1989.  Online version September 2011.  Web.  10 Oct 2011.

18.   Wall Street Journal. Saturday/Sunday, October 1-2, 2011. P. 1. Print.

19.   Second Treatise. Chapter 13. Section 158. P. 98.

20.   Second Treatise. Chapter 14. Section 159. P. 99.

21.   Second Treatise. Chapter 23. Section 201. P. 126.

22.   Second Treatise. Chapter 29. Section 225. P. 138.

23.   Second Treatise. Chapter 29. Section 242. P.148.

 

Hobbes' Leviathan (end of chapter 8 & beginning of chapter 9) Accurate or not?

     Beginning from a foundation that a man’s highest duty is his own self preservation, it was asked whether or not Hobbes is correct to assert that a state of nature ever truly existed, with its attendant war of all against all, and if so, how does one show others who may disagree with the assertion that they are incorrect to disagree.  Hobbes responds to those who may disagree by telling them to look at their own actions, taken while in a civil society.  If they lock their doors, if they go about with attendants or armed, or otherwise act in a manner to protect themselves and their property from other men, they, by their own actions are implying that a state of war between themselves and others is natural, and not all men are willingly constrained by the laws of a civil society.  If the state of war is natural, as one’s own actions to protect themselves from others implies, even though existing in a civil society, and not in a state of nature, then it can be presumed that man’s nature is generally the same now as it was prior to civil society.  Hobbes goes on to say that he is not accusing man’s nature, stating that the presence of the desires and passions that may lead to actions of war are not sins in and of themselves.  Furthermore, since he has stated earlier that there is no justice or sin in nature, the actions resulting from the passions are also not sinful or commissions of injustices unless and until the actor knows the act is in violation of a law prohibiting such actions. 

            What is the right of nature, and what is the law of nature, and are the two synonymous?  Hobbes states the right of nature as, 

“…the Liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which in his own Judgement, and Reason, hee shall conceive to be the aptest means thereunto.”

In other words, a man has a right to do (proceed to action) whatever he deems most appropriate, that serves the end purpose of self preservation.  The law of nature is a rule that can only be discerned through the use of reason, and is a general rule Hobbes says is stated thus, “…a man is forbidden to do, that, which is destructive of his life, or taketh away the means of preserving the same; and to omit, that, by which he thinketh it may be best preserved.”  The original question of synonymy is best answered with an acknowledgement that, for all practical purposes, the two rules result in the same end; self preservation.  I believe the law and the rule are contra-positive each other, and logically equivalent, though, as stated, one serves to compel actions that leads to the desired end (the right of nature), and the other serves to prohibit actions that lead away from the desired end (the law of nature).  However, they are substantially different in practice, if not desired end.  The difference is, as far as this writer is concerned, comparable in difference between the “silver rule,” which is what Hobbes asserts is the law of nature, which reason dictates leads to peace, and therefore an environment that makes self preservation more likely, and Hobbes contention that the right of nature is the “iron rule” (might makes right), where “right” is any act that contributes to “self-preservation,” and in a state of nature, would likely result in a continuation of a state of war if the law of nature weren’t adhered to.

            The law of nature would dictate, fundamentally,

“That every man, ought to endeavour Peace, as farre as he has hope of obtaining it; and when he cannot obtain it, that he may seek, and use, all helps, and advantages of Warre.” 

So, it follows that if a man cannot best secure his self-preservation through the law of nature, where he willingly surrenders, or forebears, his liberties which are a natural right, and which all should follow to seek peace, which is, by way of reason, determined to be the ideal condition in which to realize the goal of self-preservation, then he has the right of nature to fall back on, a state of war being thereby justified for one’s self-preservation.

Facebook Disagreement: Bobnoxious v. Randy Kitchens (of Columbus, GA)

The following is a conversation I recently had with an old friend after I posted this link http://www.huffingtonpost.com/2011/08/04/donald-rumsfeld-torture-lawsuit_n_917966.html?ncid=edlinkusaolp00000009 .  WOW!

It appears as if my polemic and passionate style of argument was soundly trounced by my opponent's perfect use of non-biased reason and logic.  <sigh>  Everyone give Randy a rousing round of applause!

 
Bob Huddleston

‎...But U.S. District Judge James Gwin rejected those arguments and said U.S. citizens are protected by the Constitution at home or abroad during wartime.

"The court finds no convincing reason that United States citizens in Iraq should or must lose previously declared substantive due process protections during prolonged detention in a conflict zone abroad," Gwin wrote in a ruling issued Tuesday.

Randy Kitchens We kind knew the Obama Administration would want to go after G.W's appointments. My question is..Why go after Donald Rumsfeld? He was Working for the Federal Gov't. The Federal Gov't has more MONEY and more ability to PAY damages than Don. Rumsfeld.

No the major reason for this lawsuit is because Don Rumsfeld is hated by the Left.

I also find this Court Filing is also a violation of the Constitution....the Accused is granted the RIGHT to FACE his accusers....The accusers ID is being withheld in the Court Filings....Suspicious.

Bob Huddleston Randy, the accused, or his attorney, did face his accuser (there are actually 3, all represented by the same attorney in different jurisdictions).

By the way, I'm no slouch as far as laymen go, but your Constitutional scholarship is sorely lacking, even for a layman.

Bob Huddleston In other words, there are many more nuances in terms of interpretation than most conservatives, including you, are unwilling or unable to deal with.

Randy Kitchens Getting the Facts of a case wrong doesn't mean ignorance of the Constitution Bob.
I'll be honest. I didn't read the article. The headline was enough for me to smell corruption. Why are 3 different accusers from 3 different districts using the same lawyer going after Don. Rumsfeld, a Private Citizen, No longer employed by the Federal Gov't, for ALLEGED charges of misconduct done on the Battle Field in the war against Terror.

When I question why sue Don Rumsfeld, I'm talking case law. It is COMMON practice for lawsuits to go after the DEEPER pockets. In this case the United States Government. This lawyer in my opinion has a hatred for Rumsfeld and he went looking for some way he can hurt rumsfeld..so he went looking for clients to hurt rumsfeld monetarily.

And Guess what..You don't have to win a lawsuit to hurt someone monetarily....you can force them to spend large amounts of money to defned themselves with lawyers.......And in this case of the Anonymous court filings....Don Rumsfeld must also defend his public image against a nameless faceless attacker.

Bob Huddleston Based on your post, I can only assume you *still* haven't read the article. <sigh>

Randy Kitchens Well I'm not inclined to either...the Huffington Post is even more Biased than MSNBC and Chris Mathews wants to have Obams baby.

Bob Huddleston Next time you try to criticize the contents of an article with a knee-jerk, ideologically based, response, you really should read the article, parse it at your leisure, and then posit an argument. Otherwise, you come across as a member of the willfully ignorant masses. <shrug>

Randy Kitchens Ok so now I've read the article. My opinion remains the same. Can you point where my opinion is Wrong?

Can you at least acknowledge there is something suspicious about suing Don Rumsfeld and NOT the Federal Gov't?
Especially considering even the Obama Administration has said he cannot be targeted for this lawsuit.

Again, I find it highly suspicous. And for the Record you know as well as I do, Attorney's habitually look for judges they think are more likely to rule in their favor. There are hundreds of Liberal Activist Judges that love to write laws from the Bench.

So just because a Judge said a case can move forward Doesn't mean the lawsuit is not Malicious. Remember you don't have to win a Lawsuit to destroy a person.

Bob Huddleston Are you saying that this comment from the judge is indicative of "liberal activism"?

"The court finds no convincing reason that United States citizens in Iraq should or must lose previously declared substantive due process protections during prolonged detention in a conflict zone abroad,..."

I don't know know enough about civil suits or what entities can and can't be sued to say whether or not there's anything nefarious about not suing the D.O.D., or the CIA, or the US Army, or any private contracting company involved, instead targeting Rumsfeld directly.

*IF* the stories told by these plaintiffs are accurate, and *IF* a suit against Rumsfeld directly is the route most likely to garner any compensation for these plaintiffs, shouldn't they be doing exactly what they're doing? *IF* it happened to you or a loved one, what would you advise them is the "right and just" course of action? "Suck it up and cope?"

Randy Kitchens My point is WHY SUE RUMSFED, NOT the FEDERAL GOVERNMENT? He was operating under the Directive of our Elected officials.

I'm saying if the man's rights were abused, they were ABUSED by the UNITED STATES of AMERICA not Don Rumsfeld.

But I ask again...Why Don Rumsfeld? He doesn't have as much MONEY as the Federal uh...the combined US Tax Base

Randy Kitchens I maintain my assumption this was done with Malicious Intent to Punish Don Rumsfeld for doing his job as he understood his responsibilities.

Could there have been some wrong doing on teh part of the United State Gov't? sure. But Again where does teh blame lie..With Don Rumsfeld or with the organization that Gave him the Protocals in which he operated?

Bob Huddleston Here's why: From http://www.constitution.or​g/grossack/bivens.htm

On the occasion of the 200th anniversary of the Bill Of Rights, many attorneys may not realize that these rights each contain within them an intrinsic enabling authority for the purpose of redressing violations of these rights by those federal employees entrusted to uphold and protect them.

It is worth remembering that the authors of the Bill Of Rights were heavily influenced by Anglo-Saxon legal theorists such as Sir William Blackstone, who declared that there were "three absolute rights ... the right of personal security, the right of personal liberty and the right of personal property. [1] Blackstone believed the principal aim of society is to protect individuals in the enjoyment of these absolute rights which were vested in them by the immutable laws of nature. [2]

Blackstone's ideas became embodied in the Federalist papers, and in the writings of James Madison on property interests, which he defined in quite broad terms:

"In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right, and which leaves to every one else the like advantage ... [A] man has a property in his opinions, and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties, and free choice of the objects on which to employ them."

"The protection of these faculties" Madison wrote in The Federalist No. 10, "is the first object of government."

As Madison might have anticipated, and as modern students of law and history may realize, in the pursuit of its various other objectives, the federal government from time to time treads on these rights and "faculties" and on the natural rights of mankind whose protection is found in the Ninth Amendment of the U.S. Constitution.

When Congress enacted Title 42 U.S. Code §1983 and other federal civil rights laws for the redress of violations of these rights, it did not extend liability to federal officials and employees. Instead, these laws were held to apply to "state action", and the actions of county and municipal government (except when federal officials conspired with others. See Fonda v. Gray, 1983(CA 9) CAL 707 F.2d. 435.)

The dilemma on how to obtain compensation for victims of "constitu tional torts" by federal actors remained essentially unresolved until the case of Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971).

Bivens has had more impact on the accountability of federal government officials than perhaps any other decision in the history of American law. The central issue in Bivens was whether the Fourth Amendment of the Federal constitution created an implied right of action. This was decided affirmatively in a claim for damages by individuals whose home was searched unreasonably (and hence unconstitutionally) by federal narcotic agents. Jurisdiction was not claimed under title 42 U.S. Code § 1983, which as of this writing, has not yet been held to extend liability to federal officials in most circumstances. Instead the enabling legislation was found under Title 28 U.S. Code § 1331 which grants general jurisdiction on the basis of a federal question.

Subsequent cases have held the Bivens theory of recovery applies to other claims under the various rights enumerated in the Constitution. (For decisions concerning redress of Fifth Amendment claims with Bivens actions, See Young v. Pierce, (DC Tex. 544 F.Supp. 1010) and Eight Amendment claims Mackey v. Indiana Hospital, (DC PA 562 F.Supp. 1251. [3]

Litigants who seek to bring claims against federal officials for abuses of their authority have been confused concerning the proper way to characterize their actions in the pleadings. Generally speaking, how one drafts a complaint and not what evidence is to be introduced determines whether a claim can survive as a federal cause of action. Tully v. Mott Supermarkets, Inc., 337 F.Supp. 834, 844 D.N.J. (1972).

For example, cases have held that if other theories of recovery are pleaded, a Bivens action must fail. This has forced attorneys to select whether they wish to use the Federal Tort Claims Act (Title 28 U.S. Code § 2679) and its strict presentment requirements and other federal law or to rely on a Bivens theory. A complaint alleging both theories are at risk of a dispositive motion. Serra v. Pichardo, 786 F.2d. 237 (6th Cir.)

Another easy mistake to make is in deciding who to name as a defendant. A lawsuit naming the FBI or United States Department of Justice per se as defendants may fail because the agencies are likely to raise certain immunity defenses which have yet to be abolished.

Federal employees may become personally liable for constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which constitutional practices occur or gross negligence in managing subordinates who cause violations. (Gallegos v. Haggerty, Northern District of New York, 689 F.Supp. 93)

Although certain federal officials have absolute immunity from private suit, most executive officials enjoy only qualified immunity. The rationale for the distinction is that higher officials require greater liability than officials with less complex and discretionary responsibilities. Hatori v. Haya, 751 F.Supp. 1401.

Any action is considered to be against the "sovereign" and hence fails to state a claim if judgment would "interfere with public administration, or compel the United States to act in foreign policy, or enjoin foreign policy. (Sanchez Espinola v. Reagan, 770 F.2d. 202, Rochfort v. Gibbs, 696 F.Supp. 1151, WD Michigan, 1988.)

Many litigants facing civil lawsuits in which the United States is the plaintiff have erroneously sought to counterclaim against the U.S. The United States, however, to this date has not waived sovereign immunity for claims for damages, (See United States v. Northside Realty Associates, 324 F.Supp. 287, 291 (N.D. GA 1971) (dismissing a counterclaim asserted against the Attorney General where plaintiff in the suit was the United States on the ground that although the suit was initiated by the Attorney General, the real party in interest was the United States).

When lawsuits are brought against federal officials, they must be brought against them in their "individual" capacity not their official capacity. The theory appears to be that when federal officials perpetrate constitutional torts, they do so ultra vires and lose the shield of sovereign immunity. Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991).

Bivens actions, again, are by no means an exclusive remedy for redressing abuses of authority by federal government employees, even in a political context. In the celebrated case of Socialist Workers Party v. Attorney General, 596 F.2d. 58 (1979), 444 U.S. 903 (1979) (cert. denied) one of the many claims of the plaintiff, a Trotskyite communist organization, was for 193 surreptitious entries or burglaries committed by the F.B.I. Another set of claims was for the use of disruptive informants in the organization, which successfully proved itself to be a non-violent, educational group more involved in promoting and discussing ideas rather than in any violent act.

Judge Thomas Griesa's final decision in the case allowed recovery under the Federal Tort Claims Act for the intentional torts of invasion of privacy for the use of informants as well as for the F.B.I.'s burglaries, under a theory of trespass. Many other counts were dismissed in the case for failure to adhere to the procedural requirements of the Federal Tort Claims Act (FTCA).

Why plaintiff's counsel selected the FTCA rather than the Bivens theory of recovery is not known.

The social consequences of having available remedies such as Bivens and the FTCA are significant. Together with the Freedom of Information Act, The Privacy Act, and the willingness of disillusioned persons within government to act as "whistleblowers," a limited deterrent effect exists to serious violations of civil rights by government.

The sensation caused by the illegal federally sponsored research experiments on mentally disabled children sequestered for nearly 40 years and revealed only recently indicates the changes in public sentiments.

Nevertheless, many courts have considered civil rights claims to be "disfavored actions." Consider the court in Littleton v. Berbling, 468 F.2d. 390 (7th Cir. 1971):

"The civil damages suit is worthless, especially if the victim of oppression is a social misfit or an unsavory character."

The words of Justice Louis Brandeis however, offer another view:

"Decency, security and liberty alike demand that government officials shall be subjected to the rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law, it invites every man to come a law unto himself. It invites anarchy. (United States v. Olmstead, 277 U.S. 438 (1928).

Bob Huddleston Also...the protocols were HIS purview to decide for the organizations under his leadership of those organizations, not vice versa.

Bob Huddleston And now that you know why their best course of action is to sue the highest ranking official they can tie to the alleged violations according to US legal precedent and legal thought, does it still seem like a "witch hunt when there are better, wealthier targets" or does it make sense now, that there isn't a better or wealthier target?

Bob Huddleston You said, "the major reason for this lawsuit is because Don Rumsfeld is hated by the Left."

No, sir. The major reason is that they believed they were treated unjustly by their own government which violated their rights, and the best way to get redress is to sue Rumsfeld, personally, which might also serve as a warning to future people who may be in Rumsfeld's position of authority who may want to, just as flagrantly, dismiss the Constitutional protections we claim to provide our citizens. Just a guess on my part, though.

Randy Kitchens There are So many reasons I don't like this case.
1) it sets a dangerous precedent, doing your job could get you destroyed financially once you retire public service.
2) The plaintiff is keeping his Identity Secret. If the man believes in the JUSTICE of HIs case, he should come out of the closet and face Don Rumsfeld..not strike from the shadows like a Terrorist.
3) Don Rumsfeld is reviled by many on the Left, so it wouldn't be hard to find a judge that is inclined to pass judgement against Rumsfeld. Hatred of Rumsfeld can color logic and forsight.
4) Have you considered there are National Security secrets that Don Rumsfeld cannot share to justify why enhanced Interrogation techniques were used against An American Allegedly working with Terrorists to kill Americans?
5) So while the Justice Dept. can hide behind National Security secrets, Don Rumsfeld cannot call upon that information to defend himself in a public court. You know as well as I do, a trial is often about which lawyer can lie the best. And if you have a judge predisposed to hate your client...you're more likely to be successful in destroying the person you hate.

I dont' believe this case if about JUSTICE but GREED and HATE are the primary motivating factors.

Randy Kitchens Again Bob, if they were mistreated by their Government they should be Seeking JUSTICE. By going after what they think is the weakest target, and doing this by keeping the client confidential, this is more about GREED and HATRED

Bob Huddleston The last assertion you made was that they should sue the federal government. You were then informed that it can't really be done that way because of the immunities held by a sovereign power. You seem bound and determined to blame the plaintiff and, assuming the allegations are correct, exhonerate the defendant for some reason. Why, if Rumsfeld knew what he was doing was implementing policies that were in direct violation of the civil rights of American citizens, should he get away with it, and what gives a secdef that sole authority?

Bob Huddleston If I didn't know better, I'd say you and Rummy were involved in a secret love affair and you're just trying to protect your mistress from his bad decisions. ;-)

Bob Huddleston Define the justice they should get, and what is the "best" way to go about receiving any of it?

Bob Huddleston Individuals cannot prosecute for criminal violations, only civil, and the ONLY remedies allowed for are monetary in the civil courts. That's the way it is, and that's the way it's always been here.

Randy Kitchens You know Bob, This is exactly why its a bad idea to debate Leftwinngers. They NEVER acknowledge someone may have a point that doesnt fit their world view.

I never once said the man doesn't have a right to seek justice.

And there are plenty of means...but he's not taking one of them because he wants to keep his Identity secret. THIS is a contributing factor to my belief this is motivated by GREED and HATRED, not the want of JUSTICE.

Bob Huddleston And the court apparently believes, based on documents and testimony given thus far, that to release the plaintiff's name to the public puts the plaintiff at a real risk of being retaliated against. Are you saying that the courts should release all information to the public in every case...who the witnesses are, etc? Should the courts do what they can to balance justice with safety, etc, or should they be of a mind that safety is irrelevant. I don't know the specifics and neither do you, but I do see that you are refusing to answer the question of what would constitute justice in this case, or how, under our system of jurisprudence the plaintiff should most effectively seek it.

Bob Huddleston ‎"plenty of means?" Please delve deeply into your knowledge of American jurisprudence and name 5 and tell me what form the justice would likely take, please.

Randy Kitchens What's the point Bob? You've yet to acknowledge the possiblity GREED and HATRED could be the Primary motivating factors to this lawsuit. YOu've yet bring forth any arguments that GREED and HATRED are NOT the primary motivating factors.

Bob Huddleston Sure it's possible, but considering the alleged treatment...I'd say you're wrong. Even you say that if their stories are true that they should seek justice. Yet the only solution you've given for that is something that is not plausible because of US Code.

Bob Huddleston I'll concede the possibility that we'll be struck by a planet killing meteor within the next year, too, but I've got NO evidence to support it.

Angie Huddleston Randy, it would appear that you have chosen to be willfully blind to everything that has been posted here by anyone other than you. You throw out the argument that the person should sue the federal government because they have deeper pockets than Don Rumsfeld, and then propose that because they are NOT suing the federal government that is somehow PROOF that it is greed and hatred that is motivating the case. You are then shown, in great detail, why the person can NOT sue the federal government, and then you demand that the person you are debating admit that your wild theory could be the truth, when you have given NO proof of your assertion.

You make wild claims and accusations, and give NOTHING to back them up, and then get offended that the person who actually DOES back up his claims with actual PROOF asks you to provide ANYTHING stating that your assertions *might* be accurate.

And then, somehow, you twist everything up and say that 'leftwingers' refuse to admit anyone may have a point other than them? After you have REFUSED, *explicitly* to provide ANYTHING to back up your point other than a gut feeling? PUH-LEESE!

Bob Huddleston And you know what, if I were treated the way they say they were, I'd HATE the motherfucker who made it happen and didn't stop it, and want my pound of flesh. I think that's understandable, rational, and justifiable. Regarding greed: Even if that's a motivating factor how should that affect the claim of damages assuming the claim is based on verifiable, and provable facts? Should our civil courts work in a way that says, "if you're doing this because you want money (even though that's the best you're gonna get), then you are hereby denied the right to sue in civil courts? What the hell is the point and how would that work in practical terms?

Bob Huddleston Relevant portions of your postings follow, with immediate responses and rebuttals.

Randy: Why go after Donald Rumsfeld? He was Working for the Federal Gov't. The Federal Gov't has more MONEY and more ability to PAY damages than Do...n. Rumsfeld.

Me... see my copy/paste explanation from wwwDOTconstitution.org/gro​ssack/bivens.htm

Randy: The accusers ID is being withheld in the Court Filings....Suspicious

Me... the court apparently believes, based on documents and testimony given thus far, that to release the plaintiff's name to the public puts the plaintiff at a real risk of being retaliated against...

Randy: Why are 3 different accusers from 3 different districts using... the same lawyer going after Don. Rumsfeld, a Private Citizen, No longer employed by the Federal Gov't, for ALLEGED charges of misconduct done on the Battle Field in the war against Terror.

Me... See copy/paste response above

Randy: When I question why sue Don Rumsfeld, I'm talking case law. It is COMMON practice for lawsuits to go after the DEEPER pockets. In this case the United States Government. This lawyer in my opinion has a hatred for Rumsfeld and he went looking for some way he can hurt rumsfeld..so he went looking for clients to hurt rumsfeld monetarily.

Me... You are using the fact that the federal government isn't a named defendant as evidence that it's personal vendetta the trial attorney has against Rumsfeld, even though, based on the CASE LAW I provided via the COPY/PASTE, Rumsfeld is as high as you can go and still have a "good case".

Randy: Ok so now I've read the article. My opinion remains the same. Can you point where my opinion is Wrong? Can you at least acknowledge there is something suspicious about suing Don Rumsfeld and NOT the Federal Gov't?

Me... Nope, can't see anything suspicious about the choice of target at all... see the COPY/PASTE

Randy: My point is WHY SUE RUMSFED, NOT the FEDERAL GOVERNMENT? He was operating under the Directive of our Elected officials. I'm saying if the man's rights were abused, they were ABUSED by the UNITED STATES of AMERICA not Don Rumsfeld. But I ask again...Why Don Rumsfeld? He doesn't have as much MONEY as the Federal uh...the combined US Tax Base

Me...<sigh> See the damned Copy/Paste...it's addressed.

Randy: I dont' believe this case if about JUSTICE but GREED and HATE are the primary motivating factors.

Me... See the Copy/Paste...Rumsfeld is the best and highest target where a "win" is possible. and perhaps likely.

Randy: You know Bob, This is exactly why its a bad idea to debate Leftwinngers. They NEVER acknowledge someone may have a point that doesnt fit their world view.

Me... UMMMM Which of the above points, that you keep harping on, hasn't been addressed?

Randy: I never once said the man doesn't have a right to seek justice.
And there are plenty of means...but he's not taking one of them because he wants to keep his Identity secret. THIS is a contributing factor to my belief this is motivated by GREED and HATRED, not the want of JUSTICE.

Me... "plenty of means?" Please delve deeply into your knowledge of American jurisprudence and name 5 and tell me what form the justice would likely take, please.

Did I leave anything out that was in contention throughout this entire dialogue?

Bob Huddleston Randy, your primary problem with this situation, that you've been harping on from the very beginning, is entirely dismissed by an understanding of what I copy/pasted about suing the federal government.

Now, if you want to have a semi-related discussion that deals with national security interests that may trump the civil liberties guaranteed by our Constitution, we can also discuss those.

1) Under what specific circumstances should civil liberties be suspended/revoked?

2) What liberties can and can't be revoked/suspended?

3) Is there a single individual within government who should have that authority, and if so, who and when?

4) If no single individual has the authority, by what means can and should civil liberties be revoked/suspended?

5) If a single individual, without that authority, abuses their authority and implements policies and supports policies that violate civil liberties, what should the punishment be, if any, and what, if anything, should the victims be entitled to, and how should that determination be made?

David Pfaffenroth Now that War & Peace has been retired as the stereotypical "long read" and this thread has taken its place...

Randy, your question of motive is not unfounded, but the answer as I see it is more a matter of pragmatism than political intrigue. Regardless of actual viability of the man's case, Rumsfeld is the target of said lawsuit because at the time of the mistreatment in question, Rumsfeld was the one the plaintiff believes he can prove signed the direct order. This means that Rumsfeld was not acting under any specific law (and actually breaking some) by authorizing the mistreatment, and therefore because the federal government as an entity did not authorize such treatment under the law and so cannot be held responsible.

They look to hold Rumsfeld as personally responsible for the crime he authorized because below him, the orders were simply orders being followed, and above him, no order or directive from the Fed would have allowed him to make that decision legally. Cases aimed at the DoD or any other government agency would find it extremely difficult to prove any responsibility and therefore the case is lost. If the plaintiff has some sort of proof that Rumsfeld signed the order to commit such a crime, Rumsfeld is really the only one he has a case against.

It's possible he picked Rumsfeld out of political motivation yes, but even so, Rumsfeld is about the only one he has a chance of proving had any authoritatively responsible hand in what happened to him. As it stands, the man still may not have a case, and he may end up suing an agency of some sort later.

Lastly, the amount of money an individual has vs the government means nothing. You can't get arbitrarily huge amounts of money in our court system despite what the internet stories would have you beleive. You have to prove responsibility AND substantiate your damage claims. Without some proof of damages and valid reason for the amounts (even in the so called mental anguish situations) you won't be awarded any money.

This plaintiff and his lawyer have taken the most convenient route to winning a case. Also, he's keeping his identity secret from the public, not from the courts (i.e. it was redacted from publicly available court documents).

Randy Kitchens I can admit, it may be considered an easier win to go after Don Rumsfeld. Given if I understand this correctly, we have ONE lawyer Representing THREE different cases in 3 different districts. I wouldn't be suprised to learn this lawyer went looking for these clients.

A very liberal person I know once suggested we need to revamp our Legal System. Essentially LOSER PAYS Court Cost and Lawyer Fees. This would force a people to weigh out the advantages and disadvantages of going to court. I actually think it would generate a renewed interest in Moderators.

Of course the Lawyers will never go for it, because then they would find themselves with COMPETITORS. that may or may not have finished law school but may be more adept at negotiating amenable settlements between all parties. The TRUTH does have a way of setting you free...The problem is many Lawyers and politicians tend to TWIST the truth to suit their goals.

I wonder if this lawsuit would've made it out of the lawyers office if there was a risk, he may be on the hook for Rumsfeld's legal fees.

Bob Huddleston Do you have any idea how many people are out there that have good, winnable cases, that don't pursue legal remedies because the cost is too high? Not just too high in terms of basic fees, but too costly to take on a firm like Exxon or IBM, who can, with various filings, motions, and paperwork overload win just by being able to outspend and therefore outlast most complainants?

Bob Huddleston You seem hell bent on attributing intent without any supporting evidence. Why?

Angie Huddleston Randy, seriously? The first 'reason' you gave was that they should have been suing the federal government instead of Rumsfeld. And that reason was directly addressed, and it was explained (exhaustively) to you WHY they couldn't sue the federal government. The next 'reason' you gave was that the plaintiffs' names were held private. That 'reason' was countered with the explanation that the COURT believed the plaintif was in danger of reprisals if that information was made public. Rumsfeld is allowed to know who it is, but the general public is NOT allowed to know. The third 'reason' you gave was that three different people are using the same attorney to bring the same or similar charges against a single defendant. I'm not sure this 'reason' was actually addressed, so allow me to rectify that in this case. These are nearly identical cases. It does not make sense to go over the same ground multiple times, with three different firms (or attorneys), and the expense required to actually do the same work multiple times.

Considering the fact that your points WERE directly addressed, MULTIPLE times, and you STILL choose to rant and rave and abuse someone, and accuse them of ignoring your points, when YOU have directly chosen to ingore their addressing of your points, might lead some to believe that you are not interested in actually discussing an issue, but instead to merely state your talking points and then berate anyone who chooses to actually *think* rather than swallowing them whole.

Randy Kitchens I presented SOME of my reasoning earlier. I don't care to go into any more detail. This has been a waste of my time and quite frankly Bob, your derogatory and darn right nasty comments aimed at a friend is perhaps indicative you were not posting this story to inform but to express your Joy at the news of the lawsuit.

Bottom line, I still think it's bad for President appointed Sec. of any dept. be sued for implementing policies and procedures of his boss wiith Congressional oversight once he retires from public service.

If he wanted Justice he could've demanded a congressional review of the situation. That is what we pay Congress over $100k a year to do. To insure the President doesn't overstep his authority.

Civilian contractor doing work in a war zone....Do know know what kind of cash people like that bring in? It's pretty penny. Civilian contractors earn more money than our Soldiers.

Brandy Huddleston Randy. Hi there. Just a couple of teensy little details that might help out some.

How would you feel after being unjustly tortured? Or even justly tortured? Pretty much, how would you feel after being tortured? I'm sure you'd feel victimized and horrible and frightened and etc. etc. etc. Imagine it. Allow me to draw a parallel to rape victims. They're violently abused for whatever reason, and there's a psychological affect that you can't deny.

Now try and imagine forcing a rape victim to publicly face her opponent. How is that okay? Is she a coward for not feeling safe- from her rapists family and friends or her rapist himself? Why should a torture- I repeat: TORTURE- victim be expected to face his abuser directly and publicly? Especially an abuser is as wealthy and famous as Mr. Rumsfeld.

Now, leaving that aside, let's check this out.

Do you know a damned thing about the lawyer in question? He specializes in this sort of thing, you know. Here's his page: http://www.loevy.com/Attor​neys/Michael-Kanovitz.shtm​l

Let me lay a bit of information on you. Even IF this lawyer went out of his way to find other clients to support in court, can you blame him? How likely do you think a case like this would be to win if there were only one person testifying against Mr. Rumsfeld?

I haven't been keeping up with this story at all. So I'm not sure. Maybe after they heard about the first accuser, the other two decided that Michael Kanovitz was a promising lawyer?

How about this. Look up a list of lawyers that you think would be good for your case if you were in these people's positions. Then pick the top five you'd go for. I wonder where Mr. Kanovitz would be if you weren't fighting against using him?

And seeing as he's probably the only one you've heard of so far, I wouldn't blame you for using him to help fight for you after such a traumatizing experience. You have my sympathies.

Now stop being so hostile.

Brandy Huddleston Also, why the fuck are you mentioning how much money that guy makes? How is that relevant? Makes you look like you're saying it's okay that he was treated unjustly just because he makes a bunch of money.

Randy Kitchens I think you people are MISSING the point. I am NOT saying the man doesn't have the RIGHT to pursue justice. Especially if he truly was a VICTIM of malfeisance. I'm simply saying I smell a RAT! Probabably a DemoncRAT.

There are cases of lawsuits brought against Police Departments and Cities when police officers exceed their authority and use excessive force. God knows, the City has more money than the Police officer in question.

The difference is the plaintiffs are public knowledge and they're out their proclaiming their case in front of Camerous so teh Politicians have to address the grievance.

Perhaps The lawyer is advising his client to be silent and remain hidden from public view because the Lawyer doesn't want this case to hurt Obama's chances at Reelection because then the Fed. Gov't would be tried in the court of Public Opinion.

Bob Huddleston Your constitutional scholarship is lacking. You're a conservative not looking at how nuanced and complex the law is. By not reading, but commenting, you come across as a member of the willfully ignorant masses. You defending your mistress Rummy=obvious sarcasm, and I did wink and say I knew better...dude, if you think those comments are derogatory and downright nasty...wow.

Brandy Huddleston Alright. Let's try a more simple experiment. Tell us WHY you smell a rat. Even on of the demonc nature. :/

Brandy Huddleston Also, "you people?" WHAT DO YOU MEAN, "YOU PEOPLE"?

Angie Huddleston Yeah, THAT makes sense Randy, because it was the OBAMA administration that hired Rumsfeld, who signed the orders that led to these people being tortured. Brilliant leap of logic there.

I notice that you seem to have suddenly dropped, without comment, your railing accusations about your 'reasons' being ignored, basically following it up by saying, 'Well, the reasons you responded to weren't ALL my reasons, but I don't want to share the rest of my reasons with you." If you're going to get upset about people calling you names, wouldn't you hold yourself up to the same standard, and chastize yourself for making false accusations against your friends?

Randy Kitchens OMG There you go again Bob, instead of a nice "friendly" discussion you had to go and attack me again because I have an opinion different than your own on this case.

Why must you resort to ridicule? I was under the apparent mistaken impression we were friends. Have I one time ridiculed your position? No. Have I one time made assertions you had homosexual fantasiies about anyone? No.

Maybe your resort to attacking me personally because your not able to present an argument I accept as valid for targeting Rumsfeld personally instead of the Federal Govt.

Yes I noticed you took our "Discussion" and had to broadcast it out.

The way you deride me on my Constitutional knowledge because I don't understand the "Nuance" of the constitution. That sounds Like Lawyer speak. Lawyer for "Let's twist the words so people won't really know what the definition of Is Is."

"You can judge the corruption of a country by the number of laws on the books." We one seriously corrupt country.

Bob Huddleston Yes, I do consider us friends, and we were MUCH more harsh in our beratement of each other 24 years ago. I'm tame now. What that was, was not an attack. That was a listing of everything I had said related to you, and those were not "attacks" either. But then you go and start lying about me? Sheesh. We'll get to your lie later.

1st: Your Constitutional scholarship is lacking. Is that an attack, or a statement of fact, in your opinion? I know mine is lacking, and based on what I've seen you post, I believe you know less about it than I do. So, if you're honest with yourself, you'll admit that it's a statement of fact. And it's an observation, not an insult, unless you think your scholarship exceeds mine, and then we can have a competition on it if you wish, though if you come out on top and claim that mine is lacking when compared to yours, I won't see it as an attack, or derogatory, or mean-spirited (unless I detect such in your tone ;-) )

2nd: You are a self-proclaimed conservative, and you were not looking at nuance or legal complexity. If you had been you'd have probably read the article, and then answered your own question with research as to why not sue the federal government. Instead, I did it, posted the link, and then you ignored it for all practical purposes, not once saying, "yes, I see why he probably can't sue the 'deep pockets' I think he should be allowed to, so this is probably the plaintiff's best option to get any justice for his alleged treatment." Yet another observation, and one that is not an attack either. I've got plenty of conservative friends and acquaintances that I talk with on a regular basis. Not derogatory or mean-spirited. Most of them either provide research to support their arguments/positions, or at least work to poke specific holes in what I provide to support mine. You did neither, and basically ignored it entirely.

3rd: By commenting on an article you hadn't read, that dealt with a specific topic that you hadn't researched, by definition, you were willfully ignorant. Not 'mean-spirited', not derogatory, but again, another observation, but this time one that left me disappointed in you.

4th: The lie... You said, and I quote, "Have I one time made assertions you had homosexual fantasiies about anyone? No."

How is this a lie? The obvious implication is that I did in fact make such an assertion about you. I did no such thing. I didn't even come close.

What I think you're referring to is quoted thus, "If I didn't know better, I'd say you and Rummy were involved in a secret love affair and you're just trying to protect your mistress from his bad decisions. ;-)"

A logically equivalent statement, which means the exact same thing, would be summed up this way, "I KNOW better than to say that you were protecting your secret mistress, Don Rumsfeld."

If you accept that those two statements mean the same thing, then your implication that I made an assertion that you had homosexual fantasies is a lie...or maybe just a mistake.

If you do not accept that those two statements mean the same thing, then I recommend a logic class.

Randy, that you didn't read the article, haven't given supporting reasons for your conclusion (greed and hate is the primary motivator to this lawsuit and not a quest for justice), and that you have LITERALLY been unable to analyze the statements I've made accurately, and unable to analyze the article accurately after reading it, assuming you have at this point, saddens me, disappoints me, and does make me think less of your reasoning skills than I had prior to this.

Bob Huddleston Now - Here's the ruling you seem to have a problem with "liberal judge" accusatory implications and all. Do you see anywhere that this judge is screwing up and willfully misinterpreting legal principles? I read it and I didn't, but you may be able to if your more sensitive to liberal bias than I am, which I've got no problem admitting is likely.

http://www.emptywheel.net/​wp-content/uploads/2011/08​/110803-Doe-v-Rummy.pdf

Bob Huddleston You did assert that the claim (complaint) was unconstitutional, so I'd love for you to point out the specific flaws in the judge's legal reasoning that is allowing it to move forward.

Bob Huddleston OMG...I've been defriended over this crap? WOW! Sad. <sigh>

Bob Huddleston Besides, any homosexual related (very loosely) fantasies you may have had in the past probably dealt with kicking my ass for embarrassing you when I showed up to your frat house looking "HOT" in drag. ;-) Love ya!

Randy Kitchens

• Fuck you bob. I told I DID read the fucking article. But Apparently you were too fucking busy dreaming up the next derogatory statment about me and my intelligence to see that.
  
  And nothing in the artilce is going to chang me fucking mind on my opposition of suing a former adminstration official instead of teh Federal Gov't. IF a Violation of the man's right took place, he should be seeking REDRESS with the Organization that did it in the first place. The CULTURE of teh Organization put the man's RIGHTS at risk, not one man that signed off on teh orders to detain a possible security leak.
  
  The difference between Now and the college year discussions, a razzing in a private setting is one thing..but razzing in public as the Face book discussion are shows a lack of RESPECT. You might think it funny to disrespect your "friends" in a public forum, but I don't find it amusing in the least bit. Especially when I was trying to have a serious discussion and to provide you with some understandin of why I hold the opinion I do.
  
  Did you MISS the statements where I said the man has the RIGHT to seek Justice IF his rights were trampled on? Maybe I wasn't clear but I do see how a person might go After a Private citizen because he's the weakest link.
  
  I still don't trust the motivations of the Judge or the Lawyer. It could be I've come to have a fair strong distrust of Lawyers given the propensity to TWIST the truth. I don't trust people that want to TWIST the words of the Constitution so it fits their AGENDA.
  
  in conclusion...in case you missed all the other times I tried to tell you this.
  
  I think it's a bad idea to allow a lawsuit against a former Adminstration Official for performing the job as he was instructed under the rules of engagement determined by the President and authorized by Congress.
  
  We already have a problem with Politicians not willing to VOTE their Conscience for fear someone will take their vote and TWIST it so it appears their motivation is some other reason. Now we'll have people in position afraid to do anything without getting a fucking lawyer involved to look through case law to make sure they can't be sued for making a decision.

Bob Huddleston

• You read the article after TWICE being called on not having read the article. Prior to you reading the article, I stand by the assertion that you were willfully ignorant.
  
  You are such an ideologue that you still can't see why the lawsuit is the "BEST" way for the victims to get any justice for themselves, constantly saying there are "many" other ways they can get said justice. I asked for 5, you suggested they have the ability to get a congressional hearing. No justice would come from that, though changes might be made for the future, and there is no guarantee the congress would hold a hearing on the matter, where when there's a lawsuit, an answer is required through the courts. You apparently would prefer that they NOT get the justice they seek by your refusal believe this is what they NEED to do to get any justice at all.
  
  Beautiful "spin" with, "The CULTURE of teh Organization put the man's RIGHTS at risk, not one man that signed off on teh orders to detain a possible security leak." This *one* man allegedly signed off on orders to not merely detain, but to detain, torture, and abuse an American citizen, and the one man in question knew he was violating the citizen's rights by doing so, but didn't care, and furthermore did not get the authority to do so from either the president or the congress as far as anyone can tell at this point.
  
  "Did you MISS the statements where I said the man has the RIGHT to seek Justice IF his rights were trampled on? Maybe I wasn't clear but I do see how a person might go After a Private citizen because he's the weakest link."
  
  And yet you disapprove, attributing the strategy to "greed and hatred": from the left, as if it's a democrat conspiracy, and not merely the best tactical legal route. And you've yet to support that assertion with anything.
  
  Who *twists* words? Where? When? Not in this conversation, and not relating to this topic. It appears that you just hate lawyers of all kinds and the bias is showing.
  
  I sent you the 47 page ruling, which I have read. And you say you don't trust the judge, yet you can't say why that specific judge warrants the distrust based on anything from the ruling, his past rulings *which I haven't researched* or his known political leanings *which I don't know about*. Why is that, if not because of a bias against all judges (especially if their decisions, grounded in legal precedent or not, disagree with how you would decide)?
  
  "I think it's a bad idea to allow a lawsuit against a former Adminstration Official for performing the job as he was instructed under the rules of engagement determined by the President and authorized by Congress."
  
  I've seen NOTHING from Congress or the president from this time that said the alleged crimes were part of the accepted rules when it came to treatment of US citizens. If you've seen it, please feel free to supply that information. I'm willing to bet it doesn't exist and you're grasping for justification for what was done to the victims (assuming their stories are accurate), to help push the crux of the problem away from one individual in power to an institutional problem as a way to dilute responsibility.
  
  You got your ass handed to you publicly, and feel the need to divert the focus to my criticism of your mental faculties *SUPPORTED BY REFERENCING YOUR OWN WORDS*, away from your total failure to support your assertions.
  
  Still have a bit of a temper, don't you, fella

Randy Kitchens

• Bob your ego is so tied up in you must be right that you again failed to see where I did admit I could see how a sound legal tactic would be to go after the weakest link...Don Rumsfeld..especially if the lawyer could find a judge more apt to rule in his favor. Sure even a Biased observer that has more in common with Lawyers than regular folks will admit that is a Part of our legal system today. It happens ALL of THE Time.
  
  Just Because the Judges arguments are sound per Case Law, doesn't mean Its Good. See I know for a fact having observed this sort of behavior time and again....Someone with Preconceived beliefs or Desire for a certain outcome (Bias) can be very effective at finding arguments to support his positions. I've even seen people argue the Bible Authorized Butt fucking. There were quite convincing using chapter and verse of the Bible. Doesn't mean I'm willing to accept their notion of right and wrong.
  
  Even beyond that, I've seen "Scientific" Studies that were biased before they were even started. They engineered the study to insure the result matched their Hypothesis. I spotted the Bias in HOW the experiments were Conducted. I've seen BIAS in how Surveys are asked, when they were asked, how questions were worded, How the surveyor asked the questions and even in WHO was asked.
  
  So a Judge, another Lawyer found case arguments favor of his postion.. Big fucking deal. I'm used to Lawyers twisting the truth to fit their agenda. Politicians are even more adept than lawyers...and guess what my former friend....Judges are Politicians too.
  
  As to my temper. I did NOTrespond the first time you wrote derogatory comments about my intelligence, but when you kept on with the personal attacks...Then I realized you were incapable of accepting I have a different opinion coming from a different perspective and experience.
  
  I never once tried to say YOU were wrong to support the lawsuit against Rumsfeld. You repeated accused me of being ingorant because I refused to accept the notiion it was okay for this lawsuit to go along
  
  You call me an Idealogue...How about this? I think Obama HATES the United States and is secretly pleased the Unemployment remains above 9%. I disagree with virtually EVERYTHING and every position his administration has taken.........But...I have to say Obama's Adminstration is Correct in this regard....See I did read the article. Did you msis that part where the Presidents Administration including Erik Holder whom I think is corrupt is in the right in this matter?
  
  Apparently because again, you enjoy calling people names. Probably because you have some sick need to try belittle others.
  
  You sir are a waste of my time.

Bob Huddleston

• I'm sorry you feel that way. http://bobnoxiousthoughts.blogspot.com/2011/08/facebook-disagreement-bobnoxious-v.html