The 7th Circuit issued an opinion in the case of Vance v. Rumsfeld (pdf) which has some fairly startling allegations. Judge Hamilton wrote the 81 page decision, joined by Judge Evans. Judge Manion dissented.
The procedural posture of the case was review of a trial court’s decision with respect to a motion to dismiss. At this stage, the reviewing court is required to regard the allegations in a complaint as true and determine whether, even if true, the allegations are legally sufficient to sustain a claim.
According to the complaint, the plaintiffs were U.S. citizens working for an independent contractor in Iraq called “Shield Security Services.” My take on this is that they were mercenaries on the military payroll in Iraq. They suspected their employer of acting improperly by bribing local officials and of trading alcohol to soldiers in exchange for ammo and weapons, then turning around and either using those weapons or selling them to the locals. The plaintiffs got in touch with the FBI and other government officials and started whistle blowing. At some point, their Green Zone credentials got revoked, leaving them stuck at the Shield Security Services compound in the “Red Zone.” Eventually, the U.S. military “rescued” them, only to keep them locked up in a couple of camps and subjected to torture of various kinds (e.g. sleep deprivation).
They sued Donald Rumsfeld, the United States, and unnamed defendants — they wanted to sue the soldiers who tortured them, but are not yet able to determine the names of these individuals. The government defendants moved to dismiss the lawsuit, but the district court found that the plaintiffs had stated a claim and that Rumsfeld did not have immunity under the facts alleged. The 7th Circuit agreed, and the case may now proceed.
Rumsfeld could be personally liable if the plaintiffs can prove their allegations that he devised and authorized policies that permitted the use of torture in their interrogation and detention. The plaintiffs adequately pled the “kind of active and intentional disregard for their treatment” necessary to establish liability. Secretary Rumsfeld created the policies that authorized and led to their torture. He acted with deliberate indifference by not ensuring that the detainees were treated in a humane manner despite his knowledge of widespread detainee mistreatment. The allegations go on to suggest that Secretary Rumsfeld continued to condone the unconstitutional practices even after Congress mandated otherwise.
The 7th Circuit engaged in an extensive consideration of governmental immunity claims before rejecting them. Especially interesting was the claim of immunity as to claims against military personnel in a war zone:
The unprecedented breadth of defendants’ argument should not be overlooked. The defendants contend that a Bivens remedy should not be available to U.S. citizens for any constitutional wrong, including torture and even cold-blooded murder, if the wrong occurs in a war zone. The defendants’ theory would apply to any soldier or federal official, from the very top of the chain of command to the very bottom. We disagree and conclude that the plaintiffs may proceed with their Bivens claims.
The 7th Circuit went on to observe:
a) that civilian claims against military personnel are permissible; (b) that claims based on abuse of prisoners are permissible; (c) that the Constitution governs the relationship between U.S. citizens and their government overseas; and (d) that claims against current and former cabinet officials are permitted. We then conclude that Congress has not indicated any bar to claims under these circumstances. In fact, Congress has acted to provide civil remedies to aliens who are tortured by their governments. It would be extraordinary to find that there is no such remedy for U.S. citizens tortured by their own government.
In evaluating whether the case could proceed, the 7th Circuit found it significant that the plaintiffs claim was not a general dispute with detention or interrogation policies of the U.S. military, but rather a narrow claim that their treatment was “contrary to explicit statutory law and stated military policy, because they claim they were subjected to interrogation techniques that were not authorized by the applicable Army Field Manual.”
Judge Manion dissented with an opinion that I have not yet had the opportunity to read.