Court Allows U.S. Citizens to Sue Rumsfeld for Torture

A federal appeals court in Chicago ruled that two U.S. citizens who claimed they were tortured by U.S. military personnel in Iraq may sue former Secretary of Defense Donald Rumsfeld for violating their constitutional rights. The case is notable not only for the harrowing allegations of torture and mental abuse, but for the Court of Appeals’ rejection of the usual arguments against second-guessing military decisions during wartime. Unless the U.S. Supreme Court decides to hear the case, the plaintiffs will be able to subpoena documents from the government and take sworn testimony from government officials about U.S. torture policies.


In the August 8 decision, the Seventh Circuit Court of Appeals lays out the factual allegations in explicit detail. The plaintiffs, Donald Vance and Nathan Ertel, in 2005-06 worked for a privately-owned Iraqi security services company, Shield Group Security. Vance became suspicious that the company was involved in corruption and other illegal activity. After he met with an FBI agent, he and Ertel became informants by sharing documents with U.S. officials and reporting their observations that U.S. and Iraqi government officials were engaged in illegal arms trading, bribery, and the stockpiling of weapons. They also reported that their supervisor was trading liquor to American soldiers in exchange for U.S. weapons and ammunition that the Shield Group Security firm was using or selling for profit. This is classic whistleblowing. Everyone loves a whistleblower, right?


Evidently, whistleblowing was frowned on in Iraq. After the security firm began to question Vance and Ertel’s loyalty and confiscated their credentials giving them access to the Green Zone, Vance and Ertel appealed to the U.S. government for help. The government told them to barricade themselves inside the compound and that U.S. forces would rescue them. Instead, U.S. forces took Vance and Ertel to the Embassy for questioning. Then things got ugly. The Court of Appeals writes: “After two or three hours of sleep, Vance and Ertel, who were under the impression that they had been rescued by their government, were in for a shock. They were awakened and arrested, handcuffed, blindfolded, and driven to Camp Prosperity, a U.S. military compound in Baghdad. There, plaintiffs allege, they were placed in a cage, strip-searched, fingerprinted, and issued jumpsuits. They were threatened that if they did speak, they would have ‘excessive force’ inflicted on them. Vance and Ertel were then taken to separate cells and held in solitary confinement for what they believe was two days.”


Camp Cropper


Then things got even worse. Vance and Ertel were taken to Camp Cropper, another U.S. military facility, where “they experienced a nightmarish scene in which they were detained incommunicado, in solitary confinement, and subjected to physical and psychological torture for the duration of their imprisonment—Vance for three months and Ertel for six weeks.” The Court adds, “If the plaintiffs’ allegations are true, two young American civilians were trying to do the right thing by becoming whistleblowers to the U.S. government, but found themselves detained in prison and tortured by their own government, without notice to their families and with no sign of when the harsh physical and psychological abuse would end.”


The torture included techniques forbidden by the U.S. Army Field Manual and the Detainee Treatment Act. Their lights were kept on at all times, day after day. Their cells were freezing and there was feces on the walls. They were given a concrete slab for beds, but guards woke them if they fell asleep. They were often denied food and water and necessary medical care. Intolerably loud music was pumped into their cells. They were slammed into walls while blindfolded with towels over their heads. During interrogations, Vance and Ertel were told that if they did not “do the right thing,” they would never leave Camp Cropper.


Vance and Ertel survived the physical and psychological torture. They then sued Donald Rumseld, claiming he was legally responsible for the torture. Of course, if this kind of abuse had taken place inside an American prison, the courts would not have to decide whether this abuse was actionable under the Constitution. The Eighth Amendment prohibits cruel and unusual punishment. What complicates this case is the fact that the abuse took place in Iraq during wartime.


While the Constitution is the law of the land, certain public institutions are given the benefit of the doubt in litigation. Courts often defer to the judgment of prison and public school officials in disciplining inmates and students. Courts are also reluctant to second-guess military judgments. In the 1970s, the Supreme Court refused to rule on the constitutionality of the Vietnam War. Under the Feres doctrine, U.S. servicepeople cannot sue the government over war-related injuries and U.S. military bases are immune from most First Amendment regulations.


More broadly, courts often refrain from ruling on the constitutionality of federal decisionmaking through the so-called Bivens doctrine, named after a Supreme Court decision from 1971 that held that federal officials may be sued for constitutional violations only in limited circumstances. This restriction stands in sharp contrast to constitutional claims against state and local officials. While the lawsuits against state and local officials are governed by a civil rights statute, Section 1983, which provides for broad protection against constitutional abuses, there is no corresponding statute authorizing constitutional lawsuits against federal officials. In the Bivens case, the Supreme Court said that limited constitutional claims may proceed against federal officials if the victims have no other way to attain relief. A constitutional lawsuit against a federal official will fail under Bivens so long as the plaintiff can achieve a fraction of the relief through other means, even if that relief is unacceptable to the plaintiff. Many injustices have gone unremedied because of the Bivens rule.


Arar v. Ashcroft


A recent example of the federal courts’ refusal to intervene in military and national security judgements is Arar v. Ashcroft. In that 2009 case, the federal appeals court in Manhattan ruled that a foreign torture victim could not sue the federal government over its “extraordinary rendition” program, in which detainees are sent to other countries to be tortured. Arar, a dual citizen of Syria and Canada (where he lived), was detained at Kennedy Airport in New York City, but sent to Syria where he was beaten with a two-inch thick electric cable and with bare hands and interrogated about Osama bin Laden, Iraq, and Palestine. The Second Circuit Court of Appeals held that Arar was not entitled to his day in court because the case would require the courts to review national security policy. The following reasoning is typical when courts decline to review cases that implicate war-making and national security concerns: “A suit seeking a damages remedy against senior officials who implement an extraordinary rendition policy would enmesh the courts ineluctably in an assessment of the validity and rationale of that policy and its implementation in this particular case, matters that directly affect significant diplomatic and national security concerns. It is clear from the face of the complaint that Arar explicitly targets the ‘policy’ of extraordinary rendition; he cites the policy twice in his complaint, and submits documents and media reports concerning the practice. His claim cannot proceed without inquiry into the perceived need for the policy, the threats to which it responds, the substance and sources of the intelligence used to formulate it, and the propriety of adopting specific responses to particular threats in light of apparent geopolitical circumstances and our relations with foreign countries.”


Fortunately for Vance and Ertel, the Seventh Circuit Court of Appeals found a way around the Second Circuit’s Arar ruling. Unlike Vance and Ertel, Arar was not a U.S. citizen. The Seventh Circuit also took seriously its obligation to review Executive Branch policies and practices. This was a close case, however. The Court of Appeals ruled against Ashcroft by a 2-1 vote.


Seventh Circuit Ruling


After working around the presumption against second-guessing military judgments, Vance and Ertel had to navigate the qualified immunity doctrine, which grants government officials immunity from liability if the law was not clearly established at the time of the constitutional violation. The theory is that, in close cases, government defendants cannot be expected to know that a court in the future will find a certain practice illegal. Qualified immunity also holds that government officials need flexibility in making good-faith decisions without fear that their conduct in an uncertain legal context will be deemed illegal through the benefit of 20-20 judicial hindsight. But the Seventh Circuit said that what happened to Vance and Ertel was inherently illegal and that, if the torture allegations are true, Ashcroft knowingly violated constitutional law in permitting the use of torture in the interrogation of detainees.


This was a remarkable ruling by the Seventh Circuit. Many strong cases are dismissed on qualified immunity grounds. This is because some of those cases are so innovative that they raise novel legal issues that inherently fail under the qualified immunity analysis. Yet, in this case alleging that the Secretary of Defense was responsible for the torture of two American citizens in Iraq, the Court of Appeals denied Rumsfeld immunity even though cases like this are rarely brought and Rumseld’s attorneys argued that the legal landscape in this area was inherently unclear.


How did the Court of Appeals get around qualified immunity in this novel case? For the Seventh Circuit, it was an easy call. The Court writes, “plaintiffs have articulated facts which, if true, would show the violation of a clearly established constitutional right…. The plaintiffs have pled that they were subjected to treatment that constituted torture by U.S. officials while in U.S. custody. On what conceivable basis could a U.S. public official possibly conclude that it was constitutional to torture U.S. citizens?” The Court added, “the wrongdoing here violates the most basic terms of the constitutional compact between our government and the citizens of this country.”


Courts rarely address whether the Constitution prohibits torture against U.S. citizens. The question is whether the alleged conduct “shocks the conscience,” a legal standard under the Due Process Clause that serves as a catch-all when citizens challenge government conduct under the Constitution. Courts are reluctant to find that objectionable government action “shocks the conscience.” In order to prevent the floodgates from opening up new claims for relief, courts do not want to second-guess all governmental decisions, even if those decisions are unfair. But in this case, the Seventh Circuit said that “the physical and mental torture of U.S. citizens…is a paradigm of conduct that ‘shocks the conscience.’” Borrowing its analysis from cases that struck down inhumane prison conditions, the Court concluded: “If a prisoner in a U.S. prison has his head covered and was repeatedly ‘walled,’ or slammed into walls on the way to interrogation sessions, we would have no trouble acknowledging that his…allegations, if true would describe a violation of his constitutional rights…. The plaintiffs in this case, detained without charges, have pled in detail allegations of such severe conditions and treatment, the likes of which courts have held unconstitutional when applied to convicted criminals in U.S. prisons.”


But the Court of Appeals still had to get around the strongest hurdle in this case: whether torturing U.S. citizens in a war zone violates the Constitution. And, as noted above, this is a Bivens lawsuit, which allows for constitutional claims against federal defendants in limited circumstances, usually when the lawsuit is the only way the plaintiffs can recover any relief. What distinguishes this case from those involving the unlawful treatment of American inmates is that Vance and Ertel were in a war zone. Aren’t courts reluctant to interfere with military decisions in times of war? Yes, but in this case, there is no way for Vance and Ertel to recover any damages for the torture other than the Bivens action. While the government said that these plaintiffs did have an alternative remedy in that they could have complained about the torture at the time of their detention, the Court of Appeals rejected that suggestion out-of-hand. Not only did torture emanate from the top, that is, from Secretary of Defense Rumsfeld, but “if, as the plaintiffs allege here, there was a problem stretching to the very top of the chain of command, it would make little sense to limit their recourse to making complaints within the same chain of command.” In other words, such complaints would be futile.


A Sweeping Defense?


Turning to the central issue in this case, whether torture claims against the military may proceed in court for conduct arising from a war zone, the Court of Appeals declines to defer to the war machine, reasoning: “The defendants’ principal Bivens argument is that, because this case arose in a foreign war zone, no Bivens claim should be recognized. This sweeping defense is proposed against a fairly narrow claim. The defendants are arguing for a truly unprecedented degree of immunity from liability for grave constitutional wrongs committed against U.S. citizens. The defense theory would immunize not only the Secretary of Defense, but all personnel who actually carried out orders to torture a civilian U.S. citizen. The theory would immunize every enlisted soldier in the war zone and every officer in between. The defense theory would immunize them from civil liability for deliberate torture and even coldblooded murder of civilian U.S. citizens. The United States courts, and the entire United States government, have never before thought that such immunity is needed for the military to carry out its missions.”


The Court added: “The unprecedented breadth of defendants’ argument should not be overlooked. The defendants contend that a Bivens remedy should not be available to U.S. citizens for any constitutional wrong, including torture and even cold-blooded murder, if the wrong occurs in a war zone. The defendants’ theory would apply to any soldier or federal official, from the very top of the chain of command to the very bottom. We disagree and conclude that the plaintiffs may proceed with their Bivens claims.”


This is great language for civil liberties advocates and those who opposed the war in Iraq and the use of torture in interrogating detainees. The government was suggesting that certain claims cannot proceed in court no matter how appallingly the plaintiffs were treated. That this language arises in a case against the former Secretary of Defense makes it even more noteworthy.


Relatedly, while the government argued that this case would require that the courts intrude upon national security decisions, here again, the Court of Appeals worked around this tried-and-true argument. It may be true that courts do not typically intrude upon matters of national security, but that is no reason to throw out the case. The better solution, the Court says, is to deal with the exposure of classified information as it arises. Trial courts are equipped to prevent the release of classified information. The court reasoned that “denying a Bivens remedy because state secrets might be revealed is a bit like denying a criminal trial for fear that a juror might be intimidated: it allows a risk, that the law is already at great pains to eliminate, to negate entirely substantial rights and procedures.”


This ruling does not find that Vance and Ertel were, in fact, tortured or that Rumseld is personally liable for that torture. All the Court does is allow Vance and Ertel to proceed with their lawsuit because their claims are enough to allege a constitutional violation. Still, this is an unprecedented ruling. Unless the Supreme Court intervenes, Vance and Ertel will be able to proceed like any other litigants in court, and they may presumably take sworn testimony from Rumsfeld himself. This decision confirms that, despite the conservative trend in the federal judiciary, judges with life-tenure who have no fear of political repercussions can still dispassionately rule against the highest-ranking governmental officials, even on matters arising from wartime in another country. The Court of Appeals’ ruling in Vance v. Rumsfeld shows that no one is above the law.


Stephen Bergstein is a civil rights lawyer in upstate New York