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Dismissal of Whistleblower’s Lawsuit Against Rumsfeld Grants US Officials Greater Immunity for Torture

Donald Vance on Democracy Now! in August 2011

A federal court dismissed a lawsuit last week against former Defense Secretary Donald Rumsfeld. The suit, brought by Donald Vance, a US Navy veteran and former defense contractor, and Nathan Ertel, also a former defense contractor, alleged he was responsible for torture they had experienced in an American-run prison in Iraq for nearly one hundred days. The dismissal effectively makes it even more impossible for US citizens to sue high-ranking officials, who are responsible for their torture.

Briefly, the back story is as follows: In October 2005, Vance, who had been working for Shield Group Security in Iraq since 2004, informed the FBI division in Chicago that US military personnel were involved in illegal weapons trading. This activity involved his employer, Shield Group Security, which was selling stashes of weapons to Iraqi officials. Some of the officials had ties to violent militias. Vance also reported contractors for Shield Group Security were providing liquor to US soldiers in exchange for ammunition and weapons repairs.

After Vance went to the FBI division in Chicago, he was asked to be an informant and return to Iraq. He learned his cover was blown a few months later.  He informed the US Embassy in Baghdad he felt threatened. He was told US Special Forces were coming to rescue Ertel and him.

The two contractors had their laptop computers, cell phones and cameras seized by US forces. They discussed sharing information related to Shield Group Security and then they were “sent to a trailer to sleep.”

They were woken up, arrested, handcuffed, blindfolded and then driven to Camp Prosperity. There they were held in solitary confinement for two days. They then were transported to Camp Cropper, a prison that Rumsfeld had been working to “Gitmo-tize.” At Camp Cropper, they were subjected to “enhanced interrogation techniques”—torture—like food manipulation and walling. They were not allowed to contact their families.

On November 7, the United States Seventh Circuit Court of Appeals decided to dismiss the case. Chief Justice Frank H. Easterbrook, appointed by President Ronald Reagan, concluded in the opinion:

…What plaintiffs want is an award of damages premised on a view that the military command structure should be different—that, for example, the Secretary of Defense must do more (or do something different) to control misconduct by interrogators and other personnel on the scene in foreign nations. They want a judicial order that would make the Secretary of Defense care less about the Secretary’s view of the best military policy, and more about the Secretary’s regard for his own finances. Plaintiffs believe that giving the Secretary of Defense a financial stake in the conduct of interrogators would lead the Secretary to hold the rights of detainees in higher regard—which surely is true, but that change would come at an uncertain cost in national security…

Easterbrook placed concern over what it would mean for national security if high-ranking US officials like Rumsfeld were liable for detainee torture or abuse. He proceeded to suggest that holding Rumsfeld responsible could create a precedent where judges would “make mistakes.” Lacking “vital knowledge,” they might reject facts, the law or award “excessive damages on justified claims or create supervisory liability when they shouldn’t.” Humans are fallible and “judges lack information that executive officials possess.”

The argument shows deference to those with great power in the Executive Branch. It also appears to have led to a decision that grants greater immunity to high-ranking officials than prior to the decision.

The dissenting opinion from Judge Ann Claire Williams, appointed by President Bill Clinton, is remarkable for what it argues. Williams makes it clear that “torture is a crime under international and US law.” Laws in the US are supposed to provide “civil remedies for victims of torture by government officials of other nations” (for example, the Torture Victim Protection Act). But, under the majority’s decision, “US courts are closed to US citizens who are victims of torture by US military personnel.” This is a an error as Congress had no intention to deny US civilians a right “expressly extended to the rest of the world.”

Williams added:

…A victim of torture by the Syrian military, for example, can sue in a U.S. court, but a  U.S. citizen tortured  by  the U.S. military cannot. That conclusion should be deeply troubling, to put it mildly. We should not attribute that improbable view to Congress without a far more compelling basis than the majority offers…

The dissenting judge further stated, “Supposed another country has enacted its own law identical to the US Torture Victim Protection Act. Under the majority’s reasoning, there are no “adequate and available remedies in the place” where the conduct occurred (a US military base). If Mr. Rumsfeld could be found visiting a country with its own TVPA (so he oculd be served with process), plaintiffs Bance and Ertel could sue him in that country under its TVPA because US law would provide no remedy.”

The court decision heavily relied upon interpretation of two cases, Chappell v. Wallace (1983) and United States v. Stanley (1987), cases where the decision suggested the Supreme Court never created a “non-statutory right of action for damages against military personnel.” In doing so, it put more emphasis on these cases and apparently overlooked Mitchell v. Forsyth, a case that decided whether cabinet officers should be immune from suits from individuals.

According to Williams, the Court held in Mitchell that Attorney General John Mitchell was not entitled to absolute immunity for ordering “unconstitutional surveillance of the plaintiff” even though he “acted for reasons of national security.” The Court actually found the “national security context” favored allowing the case to proceed.

…Because national security tasks are carried out in secret, “it is far more likely that actual abuses will go uncovered than that fancied abuses will give rise to unfounded and burdensome litigation,”  id. at 522, and the  “danger that  high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording  such officials an absolute immunity”…

The Court in the Mitchell case favored qualified immunity, not absolute immunity, because it would “strike the correct balance between deterring clear violations of constitutional rights and giving government officials room for discretionary judgment and reasonable mistakes.”

The federal court’s decision refused to use the word torture when describing  what Vance and Ertel suffered. Though she concurred with the majority’s opinion on immunity, Judge Diane Pamela Wood did not go for the court’s sanitizing of what happened to Vance and Ertel. She wrote in her opinion:

…Plaintiffs Donald Vance and Nathan Ertel assert that representatives of the U.S. government (who happened to be members of the  Armed Forces) subjected them to a variety of measures that easily qualify as “torture,” whether under the definitions found in the Army Field Manual, international law,or legislation such as  the Torture Victim Protection Act…This shameful fact should not be minimized by using euphemisms such as the  term “harsh interrogation techniques.”…

Finally, Williams, in her opinion, revealed key details on how the government had been preventing Vance and Ertel from having essential information necessary to press their case against Rumsfeld:

…After years of delay, the government finally complied with the district court’s  order to identify the individuals who slammed plaintiffs into walls, deprived them of sleep, food, water, and adequate clothing, and who subjected them to extreme cold, though after plaintiffs have been seeking the needed information in the district court for nearly six  years, the government still has not provided sufficient information to serve any of those individuals with process…

The “stone-walling” prevented individuals from being named or an order “personally signed by Mr. Rumsfeld that these two plaintiffs…be treated as they allege they were treated” from ever surfacing.

In conclusion, it seems this case is another case to add to the many cases in recent years that have been dismissed or decided in ways that make it more impossible for torture victims to bring cases and prevail. And, this case is particularly stunning because these were military contractors working in cooperation with a supposed FBI investigation. They were placed in detention and tortured when their cover was blown and, in the aftermath, have been denied key information on how they ended up becoming torture victims. If there is no recourse for them, what recourse is there for any US citizen abused by their government?

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Kevin Gosztola

Kevin Gosztola

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