By Katie Mesner-Hage
Former Defense Secretary Donald Rumsfeld may not be sued by two U.S. citizens who were tortured by members of the military. The U.S. Court of Appeals for the 7th Circuit, which issued the decision, is the third appeals court to let Rumsfeld off the hook legally. But the 7th Circuit decision goes further than the others. By a vote of 7-4, its judges said that no member of our military—presumably even one who personally inflicts torture—can be sued for his related conduct in office.
The facts are a case study in system failure. Donald Vance and Nathan Ertel were Americans working for a private security firm in Iraq. When Vance became suspicious that his employer was selling weapons to groups hostile to the United States, he went to the FBI. Vance and Ertel were then fingered as arms dealers. Military personnel arrested them in 2006 and held them for several weeks.
According to the complaint, Vance and Ertel were held in solitary confinement and subjected to violence, sleep deprivation, extremes of temperature and sound, denial of food, water, and medical care, and other abuses. Though the Army Field Manual (and four judges) calls this torture, the majority opinion prefers the euphemism “harsh interrogation techniques.”
The majority and the dissents clashed over military accountability and the role of the judiciary. The starting point for both sides is Bivens, a 1971 Supreme Court case that allows a victim of a constitutional violation to sue a responsible federal officer for damages when no other law or court ruling gives them an entry into court. The majority argued that the Supreme Court has spent the last three decades reining in Bivens, and it thus cannot sanction Vance and Ertel’s “novel damages remedy” against military personnel. The dissenters attacked this entire mode of analysis: It is incorrect to say that Vance and Ertel are asking the court to create a right to seek damages, they argued, because Bivens already provides it.
The majority also read Supreme Court precedent to say that civilian courts should not “interfere with the military chain of command” without guidance from Congress. And here, Congress has addressed the rights of detainees in laws such as the Torture Victim Protection Act and has chosen not to provide for damages against military personnel. End of story. The dissenters respond by accusing the majority of converting a narrow rule—one that prevents military personnel from suing for injuries related to their service—into a sweeping rule that shields the military entirely from lawsuits by civilians. One telling and troubling point they make: In the 7th Circuit now (Illinois, Indiana, and Wisconsin), a victim of torture by a foreign military who finds his torturer in the United States has a remedy, but a U.S. citizen who is tortured by his own military does not.