Former Defense Secretary Donald Rumsfeld may be held personally responsible in a civil lawsuit for the alleged torture of two American citizens held without charge in a US military prison in Iraq in 2006, a federal appeals court ruled on Monday.
Government lawyers argued that the suit must be dismissed based on rulings in earlier cases by appeals courts in New York and Washington, D.C. The Chicago-based appeals court panel said the Vance/Ertel lawsuit was different because the two earlier decisions involved noncitizens.
“We agree with the district court that a … remedy is available for the alleged torture of civilian US citizens by US military personnel in a war zone,” Judge David Hamilton wrote for the two-judge majority.
He said the government’s argument, if accepted, would “deprive civilian US citizens of a civil judicial remedy for torture or even cold-blooded murder by federal officials and soldiers, at any level, in a war zone.”
“United States law provides a civil damages remedy for aliens who are tortured by their own governments,” Judge Hamilton wrote. “It would be startling and unprecedented to conclude that the United States would not provide such a remedy to its own citizens.”
In a dissent, Judge Daniel Manion said his two colleagues were for the first time extending constitutional protections to an active war zone. Such action should be left to Congress, not the courts, he said.
“Confronted with allegations as horrible as those described in this case, it is understandable that the court concludes that there must be a remedy for these plaintiffs,” Judge Manion wrote. “But that concern should not enable this court to create new law.”
Mr. Vance and Mr. Ertel moved from Illinois and Virginia in 2005 to work for a privately-owned Iraqi security services company in Baghdad called Shield Group Security. After about a year, Vance and Ertel became suspicious that company officials might be involved in corruption and other illegal activities. They contacted US officials and started providing information about alleged illegal arms deals and the alleged trading of liquor to American soldiers in exchange for weapons and ammunition.
After their employer became suspicious of their loyalty to the firm, the two Americans called their contacts at the US Embassy for help. Military forces arrived and took them to the embassy for questioning.
According to allegations in the lawsuit, in between interrogation sessions they were kept in solitary confinement in small cells with bugs and feces on the walls. The cells were lit 24 hours a day and guards would wake them if they fell asleep. Heavy metal and country music was blasted in their cells. The cells were kept cold and prisoners were not given warm clothing or blankets. They were threatened and assaulted by guards. Requests for access to a lawyer and clergy were denied.
Ertel was released after six weeks. Vance was held for three months. No charges were ever filed against either of the men. Upon release, they were taken to Baghdad Airport and told to find their way home to the US.
The two men filed suit against Rumsfeld, charging that he had personally authorized the interrogation techniques allegedly used against them. They also charged that he was aware of detainee abuses in Iraq and failed to act to stop them.
“While it may be unusual that such a high-level official would be personally responsible for the treatment of detainees, here we are addressing an unusual situation where issues concerning harsh interrogation techniques and detention policies were decided, at least as the plaintiffs have pled, at the highest levels of the federal government,” Judge Hamilton wrote.
“We conclude that plaintiffs have sufficiently alleged that Secretary Rumsfeld acted deliberately in authorizing interrogation techniques that amount to torture,” he said, adding, “(Whether he actually did so remains to be seen).”
The court said Rumsfeld was not entitled to the protection of qualified immunity because his alleged actions in the case were unreasonable.
“A reasonable official in Secretary Rumsfeld’s position in 2006 would have realized that the right of a United States citizen to be free from torture at the hands of one’s own government was a ‘clearly established’ constitutional right and that the techniques alleged by plaintiffs add up to torture,” Hamilton wrote.
He added: “The wrongdoing alleged here violates the most basic terms of the constitutional compact between our government and the citizens of this country…. There can be no doubt that the deliberate infliction of such treatment on US citizens, even in a war zone, is unconstitutional.”
The government’s next step in the case is unclear. Government lawyers can appeal the panel’s decision to the full federal appeals court in Chicago or directly to the US Supreme Court. Barring an appeal the case would proceed to trial.