Fmr. Sec. Donald Rumsfeld (photo: Gage Skidmore)

A federal court has rejected former Secretary of Defense Donald Rumsfeld’s attempt to have a lawsuit dismissed that alleges he is responsible for authorizing the torture of two military contractors. The case, Donald Vance and Nathan Ertel v. Donald Rumsfeld, et al is one of two cases out of more than a dozen that allege Rumsfeld allowed torture to take place against US citizens in Iraq.

The dismissal means Rumsfeld has now lost two appeals against torture suits filed against him. Last week, a federal court in Washington, DC, released an opinion that upheld the other lawsuit moving forward against Rumsfeld, John Doe v. Donald Rumsfeld, et al, a case that alleges the former defense secretary had a role in the torture and illegal detention of a US citizen that was working in Iraq as a translator.

The 7th Circuit Court of Appeals is now the highest court to have allowed US citizens to push a lawsuit against Rumsfeld. The verdict upholds a previous decision issued in March 2010, which had allowed the case against Rumsfeld to move forward.

The Court’s decision affirms the case against Rumsfeld several times. It finds the “plaintiffs have alleged in sufficient detail facts supporting Secretary Rumsfeld’s personal responsibility for the alleged torture.” It finds Rumsfeld is “not entitled” to immunity, adding the “law was clearly established in 2006 that the treatment plaintiffs have alleged was unconstitutional.” And, plainly concludes: “No reasonable public official could have believed otherwise.”

The decision strikes down Rumsfeld’s attempt to “deprive” the two military contractors of their right to 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. It would be startling and unprecedented to conclude that the United States would not provide such a remedy to its own citizens

The Court decision also finds that plaintiffs have “sufficiently alleged” that Rumsfeld had deliberate involvement in authorizing interrogation techniques that amounted to torture:

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.

The decision includes a recounting of the harrowing story of how both military contractors came to be tortured.

The two contractors, Donald Vance and Nathan Ertel, were working for the Iraqi security services company, Shield Group Security, in the Red Zone in Iraq, which is just outside of the “Green Zone” in Baghdad. Vance discovered the company was “making payments to Iraqi sheikhs, which he believed was done to obtain influence.” When Vance came home to Chicago for his father’s funeral, he went to the FBI’s Chicago division and reported what he had seen. The FBI asked him to return to Iraq and report to them on further developments. They also asked him to meet with US officials in Iraq.

Vance told Ertel he was now working as an informant. Ertel began to contribute information as well.

Vance shared copies of documents from Shield Group Security with US officials. And both reported:

…in-depth observations of individuals closely associated with Shield Group Security, including U.S. and Iraqi government officials who were involved with illegal arms trading, stockpiling of weapons, bribery, and other suspicious activity and relationships. Their whistleblowing allegedly included the sharing of sensitive information with the U.S. government, including reports that their supervisor, who called himself the “Director” of the “Beer for Bullets” program, traded liquor to American soldiers in exchange for U.S. weapons and ammunition that Shield Group Security then used or sold for a profit.

Officials from Shield Group Security began to suspect the two contractors weren’t loyal to the firm anymore and confiscated their credentials, which granted them access to the Green Zone in 2006. This trapped them in the firm’s compound inside the Red Zone. Vance and Ertel contacted their US government contacts in Iraq and were told to interpret the actions against them as if they were being taken hostage. They were encouraged to barricade themselves in the room with weapons and wait for US forces to come rescue them.

Forces arrived and took Vance and Ertel to the US Embassy to be questioned. They had all of their personal property seized by US forces—their laptop computers, cell phones and cameras. They discussed their sharing of information related to Shield Group Security and were “sent to a trailer to sleep.”

The two contractors thought they had been rescued but were awakened, arrested, handcuffed, blindfolded and driven to a US military compound in Baghdad, Camp Prosperity.

… they were issued jumpsuits. They were instructed to keep their chins to their chests and not to speak. 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.

They were both prohibited from contacting their families, were fed twice a day and only allowed to use the bathroom twice a day. For sleeping, they were given thin mats on concrete. Lights were kept on 24 hours a day. They were transported to Camp Cropper, a US military facility near Baghdad International Airport after two days of confinement in Camp Prosperity.

At Camp Cropper, the plaintiffs were subjected to conditions of solitary confinement, along with physical and psychological torture. Vance faced these conditions for three months while Ertel faced the conditions for six weeks.

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.

Neither Vance nor Ertel were charged with any crime or accused of any sort of wrongdoing. They were not designated “security threats” either. They were held at Camp Cropper and forbidden to contact a lawyer. They were also initially prevented from letting their families know they were alive. When they were given the right to make a few phone calls to family, they were not allowed to let family know where they were in Iraq.

The decision appropriately concludes, “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 case of Donald Vance and Nathan Ertel v. Donald Rumsfeld, et al is just another example of the war on whistleblowing in the United States.

Recently, the ACLU published a report on the “disease of secrecy” in US government that highlighted this war. Cases involving NSA official Thomas Drake, FBI linguist Shamai Leibowitz, former CIA officer Jeffrey Sterling, State Department contractor Stephen Kim and Pfc. Bradley Manning, accused whistleblower to WikiLeaks, who have all faced cases against them for blowing the whistle, were detailed.

Yet, those cases are distinctly different. They involve information being leaked to the press. In the case of Vance and Ertel, they were supposed to be cooperating with the FBI. They were supposedly doing what they were supposed to do. Instead of going to the media, they went to law enforcement and provided intelligence on misconduct that could be investigated. Then, they proceeded to help law enforcement with a case against the contractor. This matter could have been worked out internally without the public ever finding any of the details out. But, their covers were blown, and they wound up in a US detention center and were tortured.

Contractors will now think twice before they report abuse, crimes, misconduct, waste or wrongdoing. Even if Vance and Ertel eventually win, contractors and possibly even US soldiers will always have this example to point to when deciding whether to expose illicit or illegal conduct to superiors or law enforcement authorities. They will always know if they don’t keep what they saw to themselves they could wind up in solitary confinement facing interrogation techniques normally reserved for so-called enemy combatants.

The government doesn’t like it when information winds up in the hands of organizations like WikiLeaks, but if the US government allows officials to authorize torture for those who attempt to do the right thing, if they grant impunity to officials who engage in such scandalous behavior, they should expect people will go outside established channels to expose injustice.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."