In an 8 to 3 decision, the en banc Seventh Circuit Court of Appeals reversed a ruling by Illinois U.S. District Court Judge Wayne Anderson, as well as an appellate panel that had partly affirmed that ruling, and held the judiciary should not “create a right of action for damages against soldiers who abusively interrogate or mistreat military prisoners, or fail to prevent improper detention and interrogation.”

The three appellate judges who dissented from the majority opinion argued that the plaintiffs, private American security contractors in Iraq, should have been afforded a Bivins remedy to redress their claims.

The dissent noted that both the facts and law provided an avenue by which Donald Vance and Nathan Ertel, employees of Shield Group Security (also known as National Shield Security) stationed in Iraq, could seek damages for what they contended was torture by U.S. military personnel.

According to the en banc decision, “Vance came to suspect that Shield was supplying weapons to groups opposed to the U.S.,” and became an FBI informant. However, after the individuals they had fingered accused Vance and Ertel of “gun-running,” they were arrested by American military officials in April 2006.

They were then “held in solitary confinement and denied access to counsel … [and] interrogators used ‘threats of violence and actual violence, sleep deprivation and alteration, extremes of temperature, extremes of sound, light manipulation, threats of indefinite detention, denial of food, denial of water, denial of needed medical care, yelling, prolonged solitary confinement, incommunicado detention, falsified allegations and other psychologically-disruptive and injurious techniques.’” Vance and Ertel were classified as “security internees.”

Although called before a Detainee Status Board, they were prevented from presenting evidence of their innocence and the Board did not contact the FBI to verify their claims.

“Even Saddam Hussein had more legal counsel than I ever had,” Vance told the New York Times.

The Detainee Status Board finally released both Vance and Ertel, found them innocent of the gun-running allegations and did not charge them with a crime. Ertel was released in May 2006 but Vance remained in solitary confinement until July 2006. In contravention of the Army Field Manual, Vance “was subjected to sleep deprivation, prolonged exposure to cold, intolerably loud music, ‘hooding,’ ‘walling’ (placing a person’s heels against a wall and slamming his body backward into that wall), threats of violence, and other techniques that caused physical or mental pain.”

Vance and Ertel filed suit, seeking damages from the U.S. government and then-Secretary of State Donald Rumsfeld in both his individual and official capacities. They alleged that Rumsfeld had authorized the use of harsh interrogation techniques in Iraq and that such involvement made him susceptible to personal liability.

In response, Rumsfeld argued that “federal law does not establish an action for damages on account of abusive military interrogation, that the complaint does not plausibly allege his personal involvement in plaintiffs’ detention, and that he is entitled to qualified immunity.”

The U.S. also moved to dismiss the complaint, arguing that the “military authority exception” to the Administrative Procedure Act, U.S.C. § 701(b)(1)(6), barred the lawsuit. That section prohibits judicial review of “military authority exercised in the field in times of war in occupied territory.”

Judge Anderson rejected those arguments, denied the motions to dismiss filed by Rumsfeld and the U.S. government, and permitted discovery. An interlocutory appeal followed, and a Seventh Circuit panel reversed the district court’s decision as to the U.S. but affirmed with respect to Rumsfeld. See: Vance v. Rumsfeld, 653 F.3d 591 (7th Cir. 2011).

The en banc Court of Appeals concluded that unless a cause of action exists against “soldiers and their intermediate commanders,” none can exist against superiors such as Rumsfeld. The Court noted the historical antecedents of Bivins remedies, terming it one of only three instances where “the Supreme Court [has] created a non-statutory right of action for damages against federal employees.” It further stated that the “Supreme Court has never created or even favorably mentioned the possibility of a right of action for damages against military personnel….”

The appellate court then listed the various acts of Congress that might grant some relief to Vance and Ertel: the Detainee Treatment Act, Torture Victim Protection Act, Military Claims Act, Foreign Claims Act, Military Commission Act, War Crimes Act and the Uniform Code of Military Justice. The Seventh Circuit found that none provided for “damages against military personnel or other civilian superiors,” though they did call for compensation from the U.S. Treasury rather than the private bank accounts or assets of government or military employees.

Accordingly, the majority of the en banc Court of Appeals found that Rumsfeld could not be held personally liable because his connection to the alleged wrongdoing was too attenuated and that Ashcroft v. Iqbal, 556 U.S. 5662 (2009) [PLN, July 2009, p.18] held that “knowledge of subordinates’ misconduct is not enough for liability. The supervisor must want the forbidden outcome to occur.”

The dissenting judges strongly disagreed, stating that if “a victim of torture by the Syrian military can find his torturer in the United States, U.S. law provides a civil remedy against the torturer” under the Torture Victim Protection Act, 28 U.S.C. § 1350. “Under the majority’s decision, civilian U.S. citizens who are tortured or worse by our military have no such remedy. That disparity attributes to our government and to our legal system a degree of hypocrisy that is breathtaking.”

The dissent also argued that the majority decision is “not required or justified by Supreme Court precedent, and it fails to carry out the judiciary’s responsibility to protect individual rights under the Constitution, including a right so basic as not to be tortured by our government.” The majority, they said, had “in effect create[d] a new absolute immunity from Bivins liability for all members of the U.S. military.”

They further noted that 1) “Bivins is available to prisoners who have been abused or mistreated by their federal jailors … [and] that reasoning certainly extends to the torture alleged here…,” 2) a Bivins action may be brought by civilians against military personnel who violate their rights, and 3) U.S. citizens who leave the United States take their constitutional rights with them. Finally, the dissent pointed out that previous lawsuits against public officials of the U.S. government have gone forward without undue concern for the effects such litigation might have upon the accused public officials’ personal finances.

The dissenting judges concluded that the majority had missed the point of the claims at issue in the case: “The plaintiffs may or may not be able to prove their allegations – it now is unlikely they will ever have the chance to try – but they allege that the use of harsh interrogation techniques amounting to torture was the subject of Mr. Rumsfeld’s personal attention,” which “should be enough to withstand a motion to dismiss under Rule 12(b)(6).”

Vance and Ertel petitioned the U.S. Supreme Court for a writ of certiorari, which was denied on June 10, 2013 – leaving the majority en banc appellate ruling intact, and effectively holding that U.S. citizens subjected to torture by members of the U.S. military can not sue the federal government or military officials for damages. See: Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012), cert. denied.

Additional source: www.rt.com

(First published by Prison Legal News; used by permission)

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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