Although I missed the opportunity to address this issue last week when the U.S. District Court in Washington, D.C. reached a similar conclusion, today the federal appellate court here in Chicago upheld a trial court’s decision allowing a civil lawsuit to proceed against former Defense Secretary Donald Rumsfeld for authorizing torture methods that ultimately were used against U.S. citizens detained in Iraq. The Army Times reports:
CHICAGO — A lawsuit accusing former Defense Secretary Donald Rumsfeld of personal responsibility for U.S. forces allegedly torturing two American whistleblowers who worked for an Iraqi contracting firm will be allowed to move forward, a federal appeals court ruled Monday.
The ruling from the 7th U.S. Circuit Court of Appeals in Chicago comes just days after a similar decision by a federal judge in Washington, D.C., that gave the green light to an Army veteran — who also alleges he was tortured in Iraq — to sue Rumsfeld for damages.
Monday’s ruling rejected arguments that Rumsfeld should be immune from such lawsuits for work performed as a Cabinet secretary.
The case is captioned Donald Vance and Nathan Ertel v. Donald Rumsfeld and the United States of America, Nos. 10-1687, 10-2442 (7th Circuit August 8, 2011), and you can download and read the court’s opinion in .pdf format here.
Briefly, the complaints in the underlying case allege that two U.S. citizens, Vance and Ertel, traveled to Iraq in 2005 to work as civilian employees of a private security firm called Shield Group Security in the so-called “Red Zone” outside Baghdad. Slip op. at 5. Vance became concerned that high ranking officials at Shield Group were engaged in various acts of corruption; and so he contacted the FBI in Chicago when he was home for his father’s funeral in 2006. (Id. at 5-6.) The FBI put Vance, and eventually Ertel, in contact with other government officials and requested that they gather further information about Shield Group’s activities and report back. (Id. at 6.) However, Shield Group eventually became suspicious of Vance and Ertel, revoked their credentials and essentially held the two hostage in Shield Group’s Red Zone compound. (Id. at 6-7.)
After a couple of days, U.S. military officials came to the compound and seized Vance and Ertel. But rather than rescuing them, the military transferred Vance and Ertel to Camp Cropper, a military prison near the Baghdad airport (slip op. at 7-8), where, Vance and Ertel allege, the following occurred:
Vance and Ertel allege that after they arrived at Camp Cropper they were strip-searched while still blindfolded, and issued jumpsuits. They were then held in solitary confinement, in small, cold, dirty cells and subjected to torturous techniques forbidden by the Army Field Manual and the Detainee Treatment Act. The lights were kept on at all times in their cells, so that the plaintiffs experienced “no darkness day after day” for the entire duration of their time at Camp Cropper. Their cells were kept intolerably cold, except when the generators failed. There were bugs and feces on the walls of the cells, in which they spent most of their time in complete isolation. Vance and Ertel were driven to exhaustion; each had a concrete slab for a bed, but guards would wake them if they were ever caught sleeping. Heavy metal and country music was pumped into their cells at “intolerably-loud volumes,” and they were deprived of mental stimulus. The plaintiffs each had only one shirt and a pair of overalls to wear during their confinement. They were often deprived of food and water and repeatedly deprived of necessary medical care.
Beyond the sleep deprivation and the harsh and isolating conditions of their detention, plaintiffs allege, they were physically threatened, abused, and assaulted by the anonymous U.S. officials working as guards. They allege, for example, that they experienced “hooding” and were “walled,” i.e., slammed into walls while being led blindfolded with towels placed over their heads to interrogation sessions. Plaintiffs also claim that they were continuously tormented by the guards, who would conduct shake-downs of their cells, sometimes on the false premise that they had discovered contraband, and who seemed intent on keeping them off balance mentally.
The constant theme of the aggressive interrogations was a haunting one — if Vance and Ertel did not “do the right thing,” they would never be allowed to leave Camp Cropper. Vance and Ertel were not only interrogated but continuously threatened by guards who said they would use “excessive force” against them if they did not immediately and correctly comply with instructions. The plaintiffs allege that this treatment lasted for the duration of their detention at Camp Cropper.
Vance and Ertel were never charged with any crime or other wrongdoing, nor were they designated as security threats. Instead, both were eventually released and dropped off at the airport in Baghdad to find their way home.
Slip op. at 9-11 (citations to the record omitted).
Note that all of the foregoing allegations come from the Second Amended Complaint filed by Vance and Ertel against Sec. Rumsfeld and the United States. Because Rumsfeld and the United States filed motions to dismiss those claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure, both the District Court, which denied the motions, and the Seventh Circuit Court of Appeals, which affirmed that ruling, took those allegations as true for purposes of determining whether Vance and Ertel had pled legally recognized claims against the defendants. In other words, neither the District Court nor the Court of Appeals was vouching for the accuracy of those allegations; rather, both courts were asking the question whether, if those facts were proven at trial, would Vance and Ertel be entitled to recover damages from the defendants under existing law.
Moreover, it’s important to note that neither Vance nor Ertel knew the identities of their torturers. The guards did not wear name tags or other identification, and they referred to one another by code names. (Slip op. at 11-12 n. 4.) So, rather than suing those individual prison guards, Vance and Ertel sued Sec. Rumsfeld for his role in establishing the torture methods that they were subjected to.
In any event, Vance and Ertel sued Rumsfeld for violation of their constitutional rights under the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which found that individuals whose constitutional rights were violated by federal officials could being lawsuits directly under the constitutional provision allegedly violated. (In the absence of the Bivens decision, an individual whose constitutional rights were violated by the federal government would have no remedy, because Section 1983 of the Civil Rights Act, 42 U.S.C. § 1983, applies only to state officials, not federal officials.) But that is difficult in a case like Vance’s and Ertel’s, because, as the Seventh Circuit explained, under Bivens, government officials cannot be held vicariously liable for the acts of their subordinates under ordinary legal principles of supervisory liability, or what the law refers to as respondeat superior. Rather, “a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Vance v. Rumsfeld, slip op. at 14, quoting Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1948 (2009). In other words, Vance and Ertel had to show that Rumsfeld was directly involved in creating the policies that led to the violations of their civil rights.
The entire opinion runs some 92 pages, and so I won’t attempt to summarize it all here. But the gist of the Seventh Circuit’s ruling is this:
We affirm the district court’s decision on the Bivens claims in No. 10-1687, concluding in this sequence, from the narrowest issue to the broadest: (a) that plaintiffs adequately alleged Secretary Rumsfeld’s personal responsibility for their treatment, as required under Bivens; (b) that Secretary Rumsfeld is not entitled to qualified immunity on the defense theory that a reasonable government official could have believed in 2006 that the abuse plaintiffs have alleged was not unconstitutional; and (c) that a Bivens remedy should be available to civilian U.S. citizens in a war zone, at least for claims of torture or worse.
Slip op. at 13. Moreover, with regard to Rumsfeld’s personal liability for the treatment of Vance and Ertel, the Court of Appeals ruled:
We conclude that the plaintiffs have sufficiently alleged Secretary Rumsfeld’s personal responsibility. 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. We conclude that plaintiffs have sufficiently alleged that Secretary Rumsfeld acted deliberately in authorizing interrogation techniques that amount to torture. (Whether he actually did so remains to be seen.) We differ with the district court in one respect, though. We think that the plaintiffs’ pleadings, if true, have sufficiently alleged not only Secretary Rumsfeld’s personal responsibility in creating the policies that led to the plaintiffs’ treatment but also deliberate indifference by Secretary Rumsfeld in failing to act to stop the torture of these detainees despite actual knowledge of reports of detainee abuse.
Id. at 16-17.
Two final points here. First, the court’s decision today means that Vance and Ertel will be able to proceed with their case through discovery and, barring further substantive motions, to trial. It does not mean that a jury will find in favor of Vance and Ertel; that could be months or years away, and there’s no guarantee of the outcome. Second, the defendants will probably attempt to appeal the Seventh Circuit’s decision to the United States Supreme Court, and, given the importance of the case, I would not be surprised if the Supreme Court took the case. So, there’s a long way to go until justice is truly served.
But today’s decision may prove to be an incredibly important step along the path to justice for the illegal acts of the former administration, and, in particular, for torture authorized at the highest levels. And so it’s worth remembering, once again, the critical role the courts play in our representative democracy.