Friday, November 9, 2012

US Appeals Court Rules Rumsfeld Cannot Be Held Accountable for Torture

In an 8-3 decision, the U.S. Court of Appeals for the Seventh Circuit, sitting en banc, ruled earlier this week that two American contractors allegedly tortured by U.S. forces in Iraq cannot sue former Defense Secretary Donald Rumsfeld for damages.  The decision reverses a ruling by a three-judge panel of the same court.

The plaintiffs, Donald Vance and Nathan Ertel, were working for a private security firm in Iraq in 2006 when they were arrested and detained on suspicion of illegal dealing in arms. A Detainee Status Board eventually determined that they were innocent of the allegations and they were released after several days without being formally charged.  The plaintiffs sued, claiming that they were subjected to abusive interrogation and mistreatment by U.S. soldiers during their detention, including threats, sleep deprivation, denial of food, water and medical care, hooding,  and exposure to loud music and extreme cold. They argued that Rumsfeld had authorized harsh interrogation techniques in Iraq and should be held accountable.

No U.S. statute authorizes damages against military personnel for mistreatment of detainees in these circumstances.  Accordingly, the issue confronting the court was whether the court should create a private cause of action for damages against U.S. solders for abusive interrogation or mistreatment of prisoners under common law. The court declined to do so because subjecting those in the command chain to such lawsuits could hamper military effectiveness.  In addition, the court reasoned that making defense secretaries liable for damages could unduly distract them from their critical public duties.  The proper remedy, according to the court, is a suit for damages payable by the public Treasury, not a private party, and possible criminal action for violating the Detainee Treatment Act.

The Court's decision in Vance and Ertel v. Rumsfeld, No. 10-1687 and 10-2442, may be found here.


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By refusing to allow the two contractors to sue the military personnel directly, the US Court of Appeals 7th Circuit failed to hold the people responsible accountable for their actions. While there is undoubtedly a reason behind the military chain of command, there are too many examples of soldiers acting against the wishes of their superior officers and committing abuse. It is important to hold the people who committed the crime responsible instead of allowing them to escape liability.

While I do not believe that the two detainees should be able to directly sue Donald Rumsfeld, I do believe that they should be able to recover damages from those responsible for their torture. Where this line ends is the question that the court should have addressed. Those who proximately caused the damage should be found liable and in a military setting this can be easier to trace. Because of the military system of commands, it would be easier to trace the order, starting with those directly responsible for the acts, and going back towards those who gave them the “ok.” While this chain may not be traced all the way back to Rumsfeld, it will weed out those rogue soldiers who act out against the orders of their superiors and will not burden the public Treasury with compensating the victims.

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Posted by: Daniel Masi | Nov 27, 2012 11:02:02 AM

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