Tuesday, August 09, 2011

First Time. Court Of Appeals Says Rumsfeld Can Be Sued For Constitutional Rights Violations

The Seventh Circuit issued a decision in Vance v Rumsfeld that is a first for a court of appeals. The decision holds the Donald Rumsfeld can be sued in his personal capacity for violating the Constitutional rights of American Citizens. This comes on the heels of the District Court decision last week in Doe v Rumsfeld that also allowed a suit by a citizen against Rumsfeld to proceed.

The court did not rule that the plaintiff's rights had in fact been violated. That is yet to be decided. But it did hold that the case could proceed and Rumsfeld could be personally liable if the allegations are proved.

The Court noted that the government supported its opposition to the case going forward solely on the bases of cases involving suits by non citizens. In rejecting those arguments the Court stated,

Whether or not one agrees with those decisions, the difficult issues posed by aliens’ claims should not lead courts to extend the reasoning in those cases to deny all civil remedies to civilian U.S. citizens who have been tortured by their own government, in violation of the most fundamental guarantees in the constitutional pact between citizens and our government.


The facts in the case tell a lengthy and chilling story. Here are some highlights from the opinion,

Vance and Ertel, two young American civilians, . . .worked for a privately-owned Iraqi security services company, Shield Group Security. . . . Over time, Vance became suspicious that the company was involved with corruption and other illegal activity.

. . . .

While Vance was home in Chicago for his father’s funeral, he contacted U.S. government officials to report his suspicions. He met with an FBI agent, who arranged for Vance to continue reporting suspicious activity back to Chicago. The FBI agent also requested that Vance meet U.S. government officials in Iraq to report his observations.

. . .

Vance told his friend and colleague Ertel that he had become an informant, and Ertel contributed information as well. The plaintiffs were frequently in touch with their government contacts, sometimes multiple times a day.

. . . .

Shield Group Security officials became suspicious about the plaintiffs’ loyalty to the firm. . . . Plaintiffs called their U.S. government contacts in Iraq for help. They were told that they should interpret Shield Group Security’s actions as taking them hostage, and should barricade themselves with weapons in a room of the compound. . . .

They were awakened and arrested, handcuffed, blindfolded, and driven to Camp Prosperity, a U.S. military compound in Baghdad. . . they were placed in a cage, strip-searched, fingerprinted, and issued jumpsuits . . . and held incommunicado in their cells . . . They each had a thin mat on concrete on which to sleep, but the lights were kept on 24 hours a day.

After two days, Vance and Ertel were shackled, blindfolded, and transported to Camp Cropper, a U.S. military facility near Baghdad International Airport. [They were held] incommunicado, in solitary confinement, and subjected to physical and psychological torture for the duration of their imprisonment — Vance for three months and Ertel for six weeks. . . [T]hey were strip-searched while still blindfolded, . . . held in solitary confinement, in small, cold, dirty cells and subjected to torturous techniques forbidden by the Army Field Manual and the Detainee Treatment Act. . . . The lights were kept on at all times in their cells, so that the plaintiffs experienced “no darkness day after day” for the entire duration of their time at Camp Cropper. . . . Their cells were kept intolerably cold, except when the generators failed. . . . There were bugs and feces on the walls of the cells, in which they spent most of their time in complete isolation.

. . .

Vance and Ertel were never charged with any crime or other wrongdoing, nor were they designated as security threats. Instead, both were eventually released and dropped off at the airport in Baghdad to find their way home.

This is a very lengthy decision, much of which is devoted to procedural questions. But its main conclusion is that a suit against a government official for Constitutional violations, a so-called Bivens suit, can be tried even for actions in a war zone. It should also be noted that there was a dissenting judge who thought extension of Bivens remedies into war zones was a step too far.

In order to hear a Bivens case courts do a two part analysis. First, the court must determine if there is an alternative remedy. In this case the Court found none. Second, the Court examines whether there are special circumstances in the case that caution against allowing the case to proceed. In this case the government argued that since the alleged violations occurred in a war zone, that is a special factor which should preclude the case moving forward.

The Court summarized the Government's position thusly,

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.

In rejecting this argument the court stated,

Our courts have a long history — more than 200 years — of providing damages remedies for those whose rights are violated by our government, including our military.

. . .

If we were to accept the defendants’ invitation to recognize the broad and unprecedented immunity they seek, then the judicial branch — which is charged with enforcing constitutional rights — would be leaving our citizens defenseless to serious abuse or worse by another branch of their own government. We recognize that wrongdoers in the military would still be subject to criminal pros-ecution within the military itself. Relying solely on the military to police its own treatment of civilians, however, would amount to an extraordinary abdication of our government’s checks and balances that preserve Americans’ liberty.

If this case goes to trial and if it comes back to this Court on appeal, here is a little taste of the Court's view of the heinous nature of the allegations.

Examining the plaintiffs’ claims against the backdrop of the Supreme Court’s decisions on prison conditions of confinement and prison treatment cases, we remember that abuse in American prisons was once authorized and even thought of as part of the punishment of prisoners. . . chaining inmates to one another and to hitching posts in the hot sun . . . the lashing of inmates with a “wooden-handled leather strap five feet long and four inches wide” as part of authorized corporal punishment program . . . the use of a “Tucker telephone,” a hand-cranked instrument “used to administer electrical shocks to various sensitive parts of an inmate’s body" . . . . . .

Today, the idea that a prisoner in a U.S. prison might be abused in such a manner and not have judicial recourse is unthinkable. While the Constitution “does not mandate comfortable prisons, . . . neither does it permit inhumane ones.” Farmer, 511 U.S. at 832 (citations omitted) (noting that the Eighth Amendment requires that prison officials “ensure that inmates receive adequate food, clothing, shelter, and medical care, and . . . ‘take reasonable measures to guarantee the safety of the inmates’”). If a prisoner in a U.S. prison had his head covered and was repeatedly “walled,” or slammed into walls on the way to interrogation sessions, we would have no trouble acknowledging that his well-pled allegations, if true, would describe a violation of his constitutional rights.

. . .

If a prisoner was kept awake as much as possible, kept in insufferably cold conditions, and not given sufficient bedding or clothing, we would likewise believe that there could well have been a violation of his constitutional rights.

. . . .

The plaintiffs in this case, detained without charges, have pled in detail allegations of such severe conditions and treatment, the likes of which courts have held unconstitutional when applied to convicted criminals in U.S. prisons. The allegations of abuse state claims for violations of the constitutional right not to be deprived of liberty without substantive due process of law.

One last thought. The wheels of justice grind slow but they grind fine.

Also published at September 17, 1787.

1 comment:

  1. Anonymous7:34 PM

    Great article!!! I was so excited to hear about Rumsfeld having an actual case brought against him.