Donald Rumsfeld’s Ugly Suits

U.S. citizens suing the former defense secretary for torture may finally get a day in court.

Joel Handley September 23, 2011

Former Defense Secretary Donald Rumsfeld speaks about his time in the Pentagon on March 29 at The Hudson Institute in Washington, D.C. (Photo by: Mandel Ngan/AFP/Getty Images)

For the first time since the Bush admin­is­tra­tion stripped war on ter­ror” detainees of due process rights and rede­fined inter­ro­ga­tion tech­niques to include tor­ture, a fed­er­al appel­late court has ruled against a high-lev­el U.S. offi­cial in an anti-tor­ture case. That means for­mer Defense Sec­re­tary Don­ald Rums­feld could become the first Bush-era offi­cial held liable for torture.

Don­ald Vance and Nathan Ertel, two Amer­i­cans who worked as secu­ri­ty con­trac­tors in Iraq in 2005, are suing Rums­feld and oth­er unnamed defen­dants for the abu­sive treat­ment they endured while detained at Camp Crop­per, a U.S. Army-run prison in Baghdad.

On August 8, the 7th Cir­cuit Court of Appeals upheld a low­er dis­trict court’s rul­ing that denied Rumsfeld’s attempt to dis­miss the civ­il case. Con­tin­u­ing Bush-era legal gym­nas­tics, Pres­i­dent Obama’s Jus­tice Depart­ment defend­ed Rums­feld in court by claim­ing that con­sti­tu­tion­al rights do not extend to Amer­i­cans in war zones and that Rums­feld didn’t know depriv­ing sleep, deny­ing food and run­ning blind­fold­ed inmates into walls qual­i­fies as torture.

The defen­dants are argu­ing for a tru­ly unprece­dent­ed degree of immu­ni­ty from lia­bil­i­ty for grave con­sti­tu­tion­al wrongs com­mit­ted against U.S. cit­i­zens,” Cir­cuit Judge David Hamil­ton wrote in the deci­sion. The the­o­ry would immu­nize every enlist­ed sol­dier in the war zone and every offi­cer in between … from civ­il lia­bil­i­ty for delib­er­ate tor­ture and even cold-blood­ed mur­der of civil­ian U.S. citizens.”

Thanks to a prece­dent set last year by the dis­trict court rul­ing for Don­ald Vance and Nathan Ertel v. Don­ald Rums­feld, et al., the U.S. Dis­trict Court for the Dis­trict of Colum­bia upheld a sim­i­lar civ­il case against Rums­feld, John Doe v. Don­ald Rums­feld, et al., on August 2

Togeth­er, Vance and Doe are the only cas­es out of more than a dozen brought against Bush admin­is­tra­tion cab­i­net-lev­el offi­cials for their alleged roles in war on ter­ror trans­gres­sions to be allowed to pro­ceed to tri­al. All oth­er claims have been dis­missed, often blocked by the state secrets” defense, which main­tains that U.S. nation­al secu­ri­ty would be com­pro­mised if infor­ma­tion about the cas­es were made public.

One such case was that of Khaled el-Mas­ri, a Lebanese-born Ger­man cit­i­zen whom the CIA mis­took for an al-Qae­da oper­a­tive with an iden­ti­cal name. In 2004, the CIA held him in a black-site prison in Afghanistan for four months, reg­u­lar­ly beat him and then aban­doned him – ema­ci­at­ed and pen­ni­less – in the boon­docks of Alba­nia. El-Mas­ri sued for­mer CIA Direc­tor George Tenet and oth­ers, only to have the Supreme Court dis­miss the case in 2007.

Most recent­ly, in May, the U.S. Supreme Court grant­ed immu­ni­ty to for­mer Attor­ney Gen­er­al John Ashcroft, rul­ing that Abdul­lah Kidd, a U.S. cit­i­zen, could not sue Ashcroft per­son­al­ly for his treat­ment by FBI agents in 2003. Kidd was held as a sus­pect for two weeks with­out prob­a­ble cause, and alleged that the FBI, under Ashcroft’s super­vi­sion, held him as a mate­r­i­al wit­ness for a sep­a­rate tri­al to jus­ti­fy his detain­ment. The FBI nev­er called him to testify.

The fact that the court was unan­i­mous in its deci­sion – despite the con­so­la­tion from four jus­tices that the rul­ing did not say the FBI’s actions were legal – may por­tend trou­ble for the future of Vance and Ertel’s claims against Rums­feld. Chief Jus­tice John Roberts was con­cerned about the chill­ing effect that allow­ing suits against offi­cials could have on pub­lic service. 

Mike Kanovitz, the attor­ney for Vance, Ertel and Doe, said that the Supreme Court’s rul­ing against Kidd shouldn’t affect the future of Vance. In Ashcroft’s case, they were look­ing at absolute immu­ni­ty,’ a spe­cif­ic kind of immu­ni­ty for pros­e­cu­tors, which, being the for­mer Attor­ney Gen­er­al, was avail­able to Ashcroft.”

The qual­i­fied immu­ni­ty” that Rums­feld sought with his defense is avail­able to high-lev­el offi­cials who prove that a rea­son­able per­son” would not have known that his actions vio­lat­ed the law. Because, as Vance and Doe allege, Rums­feld craft­ed the guide­lines for enhanced inter­ro­ga­tion” meth­ods, changed them repeat­ed­ly to skirt con­gres­sion­al leg­is­la­tion lim­it­ing their use and in 2003 sent Major Geof­frey Miller with orders to git­mo­tize” Camp Crop­per, the courts have decid­ed not to extend such immu­ni­ty to Rumsfeld.

Rums­feld has to decide what comes next, says Kanovitz. He could appeal Doe and ask the 7th Cir­cuit court to take anoth­er look at Vance, before peti­tion­ing the Supreme Court to hear his case. 

If Vance, Ertels and Doe win their cas­es and receive finan­cial resti­tu­tion, Attor­ney Gen­er­al Eric Hold­er might be embold­ened to pur­sue crim­i­nal charges against Rums­feld and oth­er Bush admin­is­tra­tion offi­cials who over­saw human rights abus­es. But don’t count on it: Oba­ma has pub­licly stat­ed that he doesn’t want to be look­ing back­wards” at the issue and suc­cess­ful­ly pres­sured Spain – in a 2009 let­ter lat­er pub­lished by Wik­iLeaks – to drop its war-crimes inves­ti­ga­tion of for­mer Vice Pres­i­dent Dick Cheney and Attor­ney Gen­er­al Alber­to Gon­za­lez, among oth­ers. As ever, Bush admin­is­tra­tion offi­cials remain very far from prison. 

Joel Han­d­ley, a for­mer assis­tant edi­tor at In These Times, is a Chica­go-based inde­pen­dent jour­nal­ist and free­lance editor.
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