The 7th Circuit Court of Appeals has ruled that a lawsuit brought against Donald Rumsfeld by two American contractors in Iraq who claim to have been tortured can proceed, denying Rumsfeld the qualified immunity often given to government officials. You can read the full ruling here.
The suit was brought by Donald Vance and Nathan Ertel, two Americans who went to Iraq to work for a private security company. According to the plaintiffs, they became convinced that the company they worked for was bribing Iraqi sheiks to gain influence and were involved with illegal arms trading and stockpiling weapons. They blew the whistle to the FBI and then cooperated with federal authorities in the investigation that followed. They allege that their boss was trading alcohol to American soldiers for weapons, which were then sold at a profit.
The company they worked for became suspicious and revoked the documents that allowed them access to the Green Zone, effectively holding them hostage in the company’s compound. The U.S. military then came and picked them up and took them to the American embassy. The men thought they had been rescued but then they claim they were handcuffed, blindfolded and driven to a military compound where they were placed in a cage and strip searched. I’ll let the court ruling lay out the rest of the allegations (which the court assumed were true for purposes of this ruling, but they haven’t actually been heard in court or challenged by the defendants):
After the plaintiffs were taken to Camp Cropper, 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. They allege that all of the abuse they endured in those weeks was inflicted by Americans, some military officials and some civilian officials. They allege that the torture they experienced was of the kind “supposedly reserved for terrorists and so-called enemy combatants.”
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.
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 government claims that they were being held as “security internees” because they worked for a company that engaged in gun running and was helping arm insurgents, but they were the ones who blew the whistle on those things. They were never charged with doing anything wrong.
Public officials are usually given “qualified immunity” from civil suits for actions taken while carrying out official duties, but that immunity can be stripped if those actions are deemed by a court to be in violation of clearly established rights or legal norms. In this case, the court said:
Second, we agree with the district court that Secretary Rumsfeld is not entitled to qualified immunity on the pleadings. The law was clearly established in 2006 that the treatment plaintiffs have alleged was unconstitutional. No reasonable public official could have believed otherwise.
The Obama administration has been defending Rumseld in the case and they were the ones who moved to dismiss the case based on qualified immunity. They have also, as in every other such case, invoked the broadest possible interpretation of the State Secrets Privilege. The court rejected that argument as well:
The defendants raise the concern that litigation of the plaintiffs’ claims “would inevitably require judicial intrusion into matters of national security.” This may be a serious concern, but at a very pragmatic level, the fact that classified information (from years ago) might be implicated at some point in this litigation is not a bar to allowing it to go forward at this stage. If classified information becomes a problem, the law provides tools to deal with it. As Judge Calabresi explained in Arar v. Ashcroft, the state secrets privilege is the appropriate tool by which state secrets are protected: “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.” As the majority in Arar acknowledged, “courts can — with difficulty and resourcefulness — consider state secrets and even reexamine judgments made in the foreign affairs context when they must, that is, when there is an unflagging duty to exercise our jurisdiction.” Fear of the judiciary “intruding” into national security should not prevent us from recognizing a remedy at this stage, in this case.
Courts reviewing claims of torture in violation of statutes such as the Detainee Treatment Act or in violation of the Fifth Amendment do not endanger the separation of powers, but instead reinforce the complementary roles played by the three branches of our government. See, e.g., Boumediene, 553 U.S. at 742 (“The Framers’ inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty.”); see also Hamdi, 542 U.S. at 536-37 (emphasizing, with respect to challenges to the factual basis of a citizen’s detention, that “it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to . . . his detention by his Government, simply because the Executive opposes making available such a challenge”). The defendants’ broad argument that the judiciary should
stay out of all matters implicating national security is too broad to be convincing.
This is a very welcome development. The scary thing, however, is that it conflicts with a 9th circuit ruling, which makes it likely that the Supreme Court will hear an appeal and rule definitively on the breadth of the SSP. If they rule once and for all in favor of the broad version argued by the Bush and Obama administration, the constitution is effectively a dead letter.