The 7th Circuit Creates Absolute Immunity for Military Torturing Civilians

On Wednesday, the U.S. 7^th Circuit Court of Appeals in Chicago overturned an earlier decision of a 3-judge panel of the 7^th Circuit and in an 8-3 decision ruled that two American citizens cannot sue former Defense Secretary Donald Rumsfeld and others over torture in Iraq. The two men, Donald Vance and Nathan Ertel had alleged that they were tortured by the U.S. military in Iraq, and Rumsfeld and others in the military chain of command had developed, authorized and used harsh interrogation techniques against them. Earlier, in similar cases, both the 4^th Circuit and the District of Columbia Circuit have rejected suits for damages against U.S. officials over allegations of torture.

In the instant case, the two complainants used to work for a private security company in Iraq, in 2006. They became concerned over illegal bribery and other corruption in the firm and they notified the U.S. authorities and cooperated with them. However, when they tried to act as whistleblowers against the private security firm, they were taken into custody by U.S. military forces and then taken to Camp Cropper near the airport in Baghdad. They allege that at Camp Cropper, they were subjected to harsh interrogation techniques and physical and emotional abuse.

Months later, they were dropped at the airport without any charges whatsoever against them, or any explanation as to what had happened and why. The men sued seeking unspecified damages holding violation of their constitutional rights with U.S. officials being fully aware that they were not guilty of any crimes for which they could be imprisoned or held against their will.

Last year, a three-judge panel of the 7^th Circuit held that while it may be improbable for Rumsfeld to be personally responsible for such treatment of U.S. citizens, the complainants had sufficiently argued that decisions had to be taken at the highest level of government for them to receive such unusual treatment. However, on Wednesday, while rejecting the suit, the majority observed, “A court cannot say that, if there are too few prosecutions (or other enforcement), and thus too much crime, then the Attorney General or the Secretary of Defense is personally liable to victims of (preventable) crime.”

Three judges dissented, holding that the majority opinion was creating a dangerous precedent by postulating immunity for all members of the military, in violation of Supreme Court precedent. In his dissent, Judge David Hamilton said, “This new absolute immunity applies not only to former Secretary Rumsfeld but to all members of the military, including those who were literally hands-on in torturing these plaintiffs.”

The lawyer for the complainants said that under the ruling “a civilian can never bring a claim to enforce their rights if they are violated by anyone in the U.S. military.”

The case is Vance et al v. Rumsfeld et al, U.S. Court of Appeals for the 7th Circuit, Nos. 10-1687, 10-2442.