The Seventh Circuit Court of Appeals rejected a lawsuit this week from two American civilians who claim that they were tortured by the U.S. military in Iraq, Reuters reports.
In an 8-3 opinion, the Seventh Circuit concluded that the plaintiffs had no right to sue former Secretary of Defense Donald Rumsfeld and others in the military chain of command for damages. The en banc decision reverses last year's Seventh Circuit panel ruling that the men could pursue their Bivens claims against Rumsfeld.
According to their complaint, Donald Vance and Nathan Ertel worked in Iraq for Shield Group Security (later known as National Shield Security), a private firm that provided protective services to businesses and governmental organizations. Vance came to suspect that Shield was supplying weapons to groups opposed to the U.S. He reported his observations to the FBI. Ertel furnished some of the information that Vance relayed.
Persons who Vance and Ertel suspected of gun-running retaliated by accusing Vance and Ertel of being arms dealers themselves. Military personnel arrested them in mid-April 2006.
Vance and Ertel claimed they were held in solitary confinement, threatened, tortured, and denied counsel. Their complaint states that their interrogators used harsh techniques, including tactics that the Army Field Manual classifies as "physical torture," "mental torture," or "coercion." Such techniques are forbidden by the military.
The plaintiffs alleged that Rumsfeld had authorized the "harsh interrogation methods," Bloomberg reports.
Writing for the Seventh Circuit majority, Chief Judge Frank Easterbrook said that a Bivens remedy is personal, and would not apply to the contractors' case even if the court created a common-law damages remedy against military personnel and their civilian superiors. Though the Supreme Court concluded in Iqbal that cabinet secretaries and other supervisory personnel are accountable for what they do, they are not vicariously liable for what their subordinates do. Knowledge of a subordinate's misconduct is not enough for liability.
Applying that reasoning to the plaintiffs' claims, Judge Easterbrook noted:
Rumsfeld did not arrest plaintiffs, hold them incommunicado, refuse to speak with the FBI, subject them to loud noises, threaten them while they wore hoods, and so on. The most one could say about him -- the most plaintiffs do say about him -- is that (a) in 2002 and 2003 he authorized the use of harsh interrogation techniques when dealing with enemy combatants, (b) he received reports that his subordinates sometimes used these techniques, without authorization, on persons such as plaintiffs despite the Detainee Treatment Act of 2005, and (c) he did not do enough to bring interrogators under control.
The contractors' lawyer, Michael Kanovitz, expressed disappointment in the ruling, saying that the decision means "a civilian can never bring a claim to enforce their rights if they are violated by anyone in the U.S. military," Reuters reports.
Kanovitz indicated to Bloomberg that Ertel and Vance might petition the Supreme Court for review.