Another Day, Another Person Suing Donald Rumsfeld for Torture

The 7th Circuit has just issued a decision in yet another case where a US citizen (actually, two of them–Donald Vance and Nathan Ertel) are suing Donald Rumsfeld for the torture they suffered at the hands of the military. (h/t scribe) The opinion allows the Bivens lawsuit to go forward.

Vance and Ertel are both American citizens who reported the contractor they worked for in Iraq, Shield Group Security, to the FBI for making payments to Iraqi sheikhs. Following the discovery of a cache of guns owned by Shield, Vance and Ertel were ultimately put in Camp Cropper and tortured. As the opinion describes,

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. ¶¶ 2, 20-21, 146-76, 212. They allege that all of the abuse they endured in those weeks was inflicted by Americans, some military officials and some civilian officials. ¶ 21. They allege that the torture they experienced was of the kind “supposedly reserved for terrorists and so-called enemy combatants.” ¶ 2. 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. ¶¶ 1-4, 19, 21, 52- 54, 161.

[snip]

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. ¶¶ 148, 149. Heavy metal and country music was pumped into their cells at “intolerably-loud volumes,” and they were deprived of mental stimulus. ¶¶ 21, 146, 149. The plaintiffs each had only one shirt and a pair of overalls to wear during their confinement. ¶ 152. They were often deprived of food and water and repeatedly deprived of necessary medical care. ¶¶ 151, 153-55.
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. ¶ 157. 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. ¶¶ 21, 157.

The decision, written by Obama appointee David Hamilton, had little patience for Rummy’s defense. It accused Rummy, first of all, of ignoring the detail alleged in the complaint so as to expand the meaning of Iqbal.

The defendants instead argue that plaintiffs have not alleged more than “vague, cursory, and conclusory references to [their] conditions of confinement, without sufficient factual information from which to evaluate their constitutional claim.” This argument, which is more of a pleading argument to extend Iqbal and Twombly than an argument about qualified immunity, is not persuasive. The defendants argue, for example, that while the plaintiffs allege that their cells were extremely cold, they provide no “factual context, no elaboration, no comparisons.” At this stage of the case, we are satisfied with the description of the cells as “extremely cold.” Cf. Fed. R. Civ. P. 84 and Forms 10-15 (sample complaints that “illustrate the simplicity and brevity that these rules contemplate”).
The defendants also suggest that the plaintiffs did not detail in their Complaint whether they sought and were denied warmer clothing or blankets. Even if it was not necessary, the plaintiffs actually specified the clothing and bedding that was available to each of them — a single jumpsuit and a thin plastic mat. The defendants also argue that plaintiffs did not specify how long they were deprived of sleep. That level of detail is not required at this stage, but a fair reading of this Complaint indicates that the sleep deprivation tactics were a constant for the duration of their detention, as was the physical and psychological abuse by prison officials.

It dismisses the argument–submitted in a amicus brief by the military–that regular military justice offered Vance and Ertel alternative means of justice.

For three reasons, however, we are not persuaded by the argument that a Bivens remedy should be barred because detainees who are being tortured may submit a complaint about their treatment to the very people who are responsible for torturing them. First, if, as 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 that same chain of command.

Second, the opportunity to complain offers no actual remedy to those in plaintiffs’ position other than possibly to put a stop to the ongoing torture and abuse. A system that might impose discipline or criminal prosecution of the individuals responsible for their treatment does not offer the more familiar remedy of damages.

Third, during oral argument, plaintiffs’ counsel asserted that Vance and Ertel in fact did complain about their treatment while detained. At least one of the men had face-to-face conversations with the commander of Camp Cropper, who said there was nothing he could do about their treatment.

And it got really outraged when Rummy tried to claim the war constituted a special factor that should exempt the government from prohibitions on torturing its own citizens.

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.

[snip]

If we were to accept the defendants’ invitation to recognize the broad and unprecedented immunity they seek, then the judicial branch — which is charged with enforcing constitutional rights — would be leaving our citizens defenseless to serious abuse or worse by another branch of their own government. We recognize that wrongdoers in the military would still be subject to criminal prosecution within the military itself. Relying solely on the military to police its own treatment of civilians, however, would amount to an extraordinary abdication of our government’s checks and balances that preserve Americans’ liberty.

Now, the ruling is significant for a number of reasons. The facts here are very close to the facts in Doe v. Rumsfeld–the DC District case which was just allowed to move forward. In both, US citizens who were civilian employees in Iraq were tortured in Camp Cropper. Both took place after the Detainee Treatment Act. That’s particularly significant, since both cases argue that since Congress didn’t address torture of US civilians under the DTA, it both reinforces the notion there is no other remedy, but also rules out the possibility that Rummy simply couldn’t be expected to know that torturing American citizens was wrong.

The plaintiffs have adequately alleged that Secretary Rumsfeld was responsible for creating policies that governed the treatment of the detainees in Iraq and for not
conforming the treatment of the detainees in Iraq to the Detainee Treatment Act.

In fact, this case goes further, pointing to news reports that after DTA, Rummy rewrote part of the Army Field Manual (Appendix M) to permit torture to continue.

The plaintiffs contend that Secretary Rumsfeld eventually abandoned efforts to classify the Field Manual, but that the “December Field Manual” was in operation during their detention and was not replaced until September 2006, after plaintiffs had been released, when a new field manual (Field Manual 2-22.3) was instituted. ¶ 244; Pl. Br. at 11. The dissent criticizes plaintiffs’ reliance on the newspaper report, but plaintiffs’ case for personal responsibility rests on allegations that are far more extensive. In any event, these are disputes of fact that cannot be resolved by a Rule 12(b)(6) motion.

But this ruling–particularly the language about the immunity that a rejection of the Bivens suit would imply–applies in large part to Jose Padilla’s suit against Rummy for almost the same terms (though Padilla wasn’t even seized in a war zone).

This ruling in the 7th Circuit, with another ruling due at some point in Padilla’s 4th and 9th Circuit suits, as well as the DC District Doe case, all raise the chances that SCOTUS will have to answer the question of whether our government can torture US citizens with impunity.

Sure, Justice Roberts and his pals are likely to try to find some way to thread this needle, if not approve such treatment more generally. But it looks increasingly likely they’re going to have to decide the question one way or another.

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30 replies
  1. Nance says:

    It can always get worse, can’t it?

    Wonder how that initiative to impeach Clarence Thomas on ethics violations is faring?

  2. Mary says:

    BTW – how has the FBI weighed in on this suit? Vance went to them (chi-town FBIers) and they sat back and let him go into military torture. Something everyone who ever thinks of trying to work with them should keep in mind.

    Any chance of getting the FBI via a spox to weigh in on what their position is on military torture of their whistleblowers?

    Yeah – thought not.

  3. MadDog says:

    I never imagined that Rummy would be more fearful of staying in the US than traveling overseas.

    Just shows to go ya’.

  4. Jim White says:

    More bad stuff from Camp Cropper during the time we know McChrystal was covering for torture there. I hope at least one of these cases gets his name in there. (A quick search of the decision pdf didn’t find the name…)

  5. Mary says:

    @6 – well, at least it’s not like they are going after just plain anti-war dissenters or using agent provocateurs or …

    never mind.

  6. phred says:

    So with the ruling from the 7th, the next stop is SCOTUS right? Any idea how quickly the appeal process might go?

    • bmaz says:

      As I have intimated elsewhere (maybe here too), he may not be “Chief Judge”, but the 7th is Posner land. If I were the government, I have to seek en banc review before petitioning the Supremes; always good practice of course, but the 7th is not that liberal, they may really get relief that way via en banc. But the en banc process slows the gig down. A lot.

  7. person1597 says:

    I can tell you whose ass Rummy was after…

    Rumsfeld was sitting in the front row as Parton sang her hit “Coat of Many Colors” before he was introduced.

    I hope the “country music” played as torture wasn’t Dolly’s. That would hurt peoples’ feelings.

  8. bmaz says:

    @bmaz:

    Dont know how I came out with “Mary Mary” on the last reply, but reminds me of my favorite nursery rhyme my mom taught me as a child:

    Mary Mary,
    How does your garden grow?
    With weeds and grass,
    Like man it’s a gas;
    But don’t let the authorities know!

  9. rugger9 says:

    @Jim White:

    Why stop with McChrystal? Petraeus was in charge. If SCOTUS lets this go, a real possibility, then Dred Scott will no longer be the worst decision ever made by the Court. Not only does it violate more than a few Amendments to the Constitution (6th, 8th and 14th in particular) which has very plain language, this also violates several treaty obligations duly accepted under Constitutional procedures by the USA.

    If SCOTUS lets this go, time to move to Canada. America will have been destroyed.

  10. rugger9 says:

    @bmaz:

    But how is this treatment of any US citizen acting within the law [however inconvenient for the MOTUs in the area] consistent with the various amendments? It’s open and shut as I see it. It will be interesting to see how the neocon judges will twist the Constitution to fit their masters’ demands, but it will never be right.

  11. Garrett says:

    Good background on the runup to the Sunni Awakening operation is David Rose, Heads in the Sand, at Vanity Fair.

    Paul Wolfowitz hated the idea. Donald Rumsfeld was more complex: “probe an opening.”

    A Marine Corps civil affairs Colonel was at an important July 2004 meeting in Amman with a well-connected Iraqi businessman.

    These men were desperate to pursue the Sunni contacts, and took serious risks with their own careers in order to do so. They were supported by officers close to the top of the U.S. military, including Lieutenant General James T. Conway, then the Marine Corps commander in Iraq and today the commandant of the Corps.

    The Titan contractor, John Doe, was working for Marine intelligence, in his early-stage contacts with .

  12. Bob Schacht says:

    I’ve been wondering about your take on this, EW, ever since I heard about the second case.

    One question, however: Two paragraphs in the middle begin with “It” (or “And it”). The antecedent for these “Its” is not clear. Does it refer to “The Court”? Can that be fixed?

    Thanks for this report!

    Bob in AZ

  13. Nescio says:

    This whole kabuki-stuff is beyond me. Are you seriously saying they are resurrecting the befehl-is-befehl-defence? What happened to the old command responsibility-thingy?

    For the legal team out there, how can there be some sort of immunity defence when UNCAT explicitly precludes exactly that?

    Cheers.

  14. Sally Blakemore says:

    This is what I have been waiting for. Justice for these warring, torturing, murdering killers of innocent people for their sadistic pleasures and profits. Rumsfeld signifies a hideous, soulless creature to me along with Cheney the terrible and Bush the despicable now if they will just go after Rice, Rove, Powell, Gonzales, Pearle, Ashcroft and Barbara Bush and Laura Bush for their services to these criminals we will have it in the bag for a new start.

  15. rugger9 says:

    @Nescio:

    There really isn’t, especially when the Constitution itself binds us to treaties we have ratified. This was. However, never underestimate the pretzel-making capability of a Bushie judge or DOJ burrower flunkie. I know bmaz thinks they are gone, but if Obama won’t even replace the USAs in a timely manner [especially Canary, who is being replaced with another GOP hack], the lower levels aren’t going to be touched. They are the ones filing this stuff, not Holder.

  16. Kathleen says:

    @Mary:

    How does that go?

    First they came for the Socialists, and I did not speak out —
    Because I was not a Socialist.

    Then they came for the Trade Unionists, and I did not speak out —
    Because I was not a Trade Unionist.

    Then they came for the Jews, and I did not speak out —
    Because I was not a Jew.

    Then they came for me — and there was no one left to speak for me.

  17. Mary says:

    One thing I think is really important, factually, is that Vance and Ertel were actually taken out of the US Embassy by the military. They were initially taken to the emabassy, met with officials and were sleeping there when the State Dept sent in the military to cart them off.

    Kind of the way Mukasey did his Padilla hand off.

    Old link to a Vance story relatively contemporaneous.

    http://www.nytimes.com/2006/12/18/world/middleeast/18justice.html

  18. Mary says:

    Interesting, in a way, that in 2005 while a lot of this was going on, Vance was Obama’s constituent. He’s the guy they would have gone to for help.

    And it’s his DOJ that is telling this man that the miltiary could have absolutely tortured him to death and never even told his family what happened to him and there’s just no recourse. Because men like Obama have no rules applicable to them. Women like Condi Rice hand over Americans to military depravity without a thought while they go looking for some nice shiney thigh boots and children like those of DOJ lawyers who were the architects learn that this – the crushing of people who don’t have your political connections and the destruction of their families all with no consequence – is what it means to be a “patriot.”

  19. Jeff Kaye says:

    Fascinating in so many ways. It’s very interesting to me, of course, to see that Appendix M was put into play in Dec. 2005, 9 or 10 months before the 2006 AFM was officially implemented. There has to be a document that confirms this, a memo or something.

    But I don’t see how Appendix M could be used in an “official” capacity on these men, unless they were classified as “illegal enemy combatants”. The sad reality is that under other provisions of the AFM, stress positions, water torture (other than “waterboarding”, in quotes, meaning the government’s definition, not other water tortture), and exploitation of phobias and other induction of fear and debility were and are allowed.

    Great question, Mary, about the FBI.

    Thanks for the coverage of the whole issue, EW.

  20. Jeff Kaye says:

    @rugger9: Not sure Petraeus in charge when Vance and Ertel were imprisoned and tortured by U.S. forces. Wasn’t until Jan. 07 he was given overall command. Prior to that, in this time period, he was commander of the Multi-National Security Transition Command Iraq, training Iraqi police and security forces, helping organize their paramilitary squads for torture and assassination.

    See my recent article, The Forgotten History of David Petraeus. So, Petraeus may have been responsible for torture, but maybe not that of Vance and Ertel.

    They’re going after Rummy. They have the right man.

  21. Gitcheegumee says:

    Jeff Kaye:

    Would John Walker Lindh (American Taliban)have grounds to sue Rumsfeld for torture,also??

  22. Gitcheegumee says:

    Rumsfeld ‘told officers to take gloves off with Lindh’ – Americas …www.independent.co.uk › News › World › Americas – CachedJun 10, 2004 – Rumsfeld ‘told officers to take gloves off with Lindh’ … Critics say they show the abuses at Abu Ghraib were part of a deliberately …

    Rumsfeld’s Lawyer in 2001: “Take the Gloves Off” on Lindh …www.democraticunderground.com › DiscussJun 25, 2007 – Rumsfeld’s Lawyer in 2001: “Take the Gloves Off” on Lindh. … “We know he was tortured,” says human-rights attorney Scott Horton. …

    Prison Interrogators’ Gloves Came Off Before Abu Ghraib (HUGE …‎ – Jul 31, 2011
    Press reporting of the Taguba article by Seymour Hersh …‎ – Jun 17, 2007
    Rumsfeld ‘told officers to take gloves off with Lindh …‎ – Jun 10, 2004

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