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Monday, Aug 22, 2011, 10:37 am

How U.S. Citizens Are Suing Donald Rumsfeld for Torture

By David Szydloski

Donald Rumsfeld speaks at CPAC in Washington D.C. on February 10, 2011, after receiving the "Defender of the Constitution Award."
(Photo by Gage Skidmore via Wikipedia)

By denying the government’s motions to dismiss their complaints, two federal court decisions made at the beginning of the month, Vance v. Rumsfeld (7th Circuit 2011) and John Doe v. Rumsfeld (U.S. District Court, District of Columbia, 2011), allowed three U.S. citizens to proceed with their civil lawsuits against former Secretary of Defense Donald Rumsfeld.

The plaintiffs allege that while Rumsfeld was still Secretary of Defense, he was directly involved “in creating and carrying out policies that caused” their torture while in U.S. custody in Iraq. But how can Rumsfeld be sued for the crimes perpetrated by unnamed torturers? Finding the answer to that question provides a look at how civil liberties are faring under Obama’s presidency. (Note: I will only be discussing the Vance decision here.)

There are two parts of the government’s motion to dismiss that need to be looked at separately: the claim that the plaintiffs did not have an appropriate cause of action and that the plaintiffs did not plead sufficient facts to support their allegations. 

1. Cause of Action

The plaintiffs in Vance allege that their Fifth Amendment right of due process was violated by the illegal torture and detainment which they were subjected to because of policies Mr. Rumsfeld implemented.

The cause of action for most civil rights cases is guaranteed by a federal statute, 42 U.S.C. 1983, but that statute does not apply to cases against the federal government or its agents. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court ruled that citizens do have a cause of action against the federal government like that in 42 U.S.C. 1983, as long as there is no other suitable alternative available for a plaintiff to protect his interests. The court found that the plaintiffs in Vance did not have any viable alternative other than to file their suit under the Bivens standard.

The government's main arguement was that the Bivens standard should not be applied to Vance “because this case arose in a foreign war zone”—an argument consistent with many government attempts over the past 10 years to defend civil liberties violations by appealing to war or terrorism. It is a claim ultimately of imperial fiat that is often applied extraordinarily broadly, as the Vance court recognized:

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.

The broad insistence on legal exceptionalism is particularly disturbing at a time of growing U.S. military engagement overseas and use of civilian contractors in war zones. And though, as the government points out in its argument, there are some legal frameworks in place to protect some interests of some citizens—such as the Geneva Conventions, the Unified Code of Military Conduct, and the local Status of Forces Agreements (SOFA)—the court in Vance ordered that the option to plead under Bivens should be available to protect the rights of citizens if other action is not viable.

2. Sufficient Evidence for Claims

The government’s motion to dismiss also argued that the plaintiffs hadn’t given enough (or the necessary) details in their complaint to support their allegations. The court found that, based on the relevant standards and case law, all the plaintiffs needed to show in their complaint was that “Secretary Rumsfeld was personally involved in and responsible for the alleged constitutional violations” by establishing the policies which allowed the torture of detainees and that Rumsfeld had acted with “deliberate indifference” towards the changing of these policies.

Plaintiffs relied on the following evidence to support their allegations, which the court found sufficient to overcome the government's challenge:

1) In 2002, Secretary Rumsfeld personally approved interrogation techniques for Guantanamo that were contrary to “the then governing Army Field Manual 34-52,” which included month long isolations, sensory deprivation, and 20 hour interrogation sessions. In 2003, Rumsfeld rescinded this formal authorization but took no action to end any ongoing use of those techniques or to confirm that those techniques were not supposed to be used.

2) In 2003, when Rumsfeld had directed that the interrogation techniques being used at Guantanamo Bay be used in Iraq, he had corresponded with Major General Geoffrey Miller, who at the time was the commander of Joint Taskforce Guantanamo overseeing the detention center there, asking the general about how to go about getting more “actionable intelligence” out of Iraqi detainees and, with Gen. Miller’s consultation, approved interrogation techniques outside the Army Field Manual. See, Senate Armed Services Committee’s 2008 report “Inquiry Into the Treatment of Detainees in U.S. Custody” to support their allegations.

3) There could have been no doubt about whether any of the above mentioned policies were in violation of U.S. law because, if the Geneva Conventions were not enough, Congress had passed legislation in 2004 and 2005 to specifically address allegations of torture of detainees, such as the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, and the Detainee Treatment Act.

Even if Rumsfeld did not have firsthand evidence that policies he supported and later retracted were still being followed, there was plenty of independent documentation that raised concerns about human rights abuses that were ignored, including former Secretary of Defense James Schlesinger's report, “Final Report of the Independent Panel to Review DoD Detention Operations.” (2004) and The International Committee of the Red Cross’s “Report of the International Committee of the Red Cross on the Treatment by the Coalition Forces of Prisoners of War And Other Protected Persons By the Geneva Conventions in Iraq During Arrest, Internment and Interrogation”(2004).

It is important to note that by denying the government’s motion to dismiss, the 7th Circuit Court is not making a statement about the merits of the plaintiffs’ position; they are merely acknowledging that, under the Federal Rules of Civil Procedure which govern federal courts, the complaints are adequate and the case can move forward.

But surviving a motion to dismiss in federal court is not simply a small procedural issue. In a recent article in the Duke Law Review, New York University professor Arthur Miller points out that, since two recent Supreme Court decisions, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937 (2009), the “favored” way to dispose of a case in federal court by defendants is the motion to dismiss, rather than a motion for summary judgment—which comes much later in the case, after discovery is completed but before trial begins.

Furthermore, the Vance decision is a very thorough opinion. Stephen D. Schwinn, a constitutional law expert from John Marshall Law School in Chicago, suggests, judging by the length of the opinion (92 pages), that it was “tailored to withstand any appeal.”

But the plaintiffs still have a hard road ahead of them. The Department of Justice and the Obama Administration have already spoken out against Vance decision:

The Obama administration has represented Rumsfeld through the Justice Department and argued that the former defense secretary cannot be sued personally for official conduct. The Justice Department also argued that a judge cannot review wartime decisions that are the constitutional responsibility of Congress and the president.

And the department said the case could disclose sensitive information and distract from the war effort. Further, the Justice Department said the threat of liability would impede future military decisions. (Chicago Daily Law Bulletin, “Judge allows suit against Rumsfeld to move forward”, August 4, 2011).

This should come as no surprise from an administration that has said time and time again that it is not going to be looking backwards on potential abuses of power in the past, lest they be deemed too partisan—clearly showing the priority they continue to place on political expedience over justice.

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