The Justice Department represents federal officials when they're sued over how they've performed their duties, and when former secretary of defense Donald Rumsfeld was sued by two American civilians in 2006, Justice replied that Rumsfeld's conduct was not for the courts to judge.
Whatever happened to plaintiffs Donald Vance and Nathan Ertel in Baghdad in 2006, the argument went, it happened "while the United States was engaged in active hostilities in a war zone." And holding Rumsfeld to account "would violate bedrock separation-of-powers principles [and] have serious adverse consequences for national defense." Justice's motion to dismiss was submitted to federal circuit court judge Wayne Andersen of Chicago in 2008, and in a groundbreaking ruling last week, Andersen denied it.
Vance and Ertel say they were tortured in the maximum-security military prison Camp Cropper and that interrogation policies laid down by Rumsfeld were the reason. But "the threat of personal liability for money damages would jeopardize swift military action in the field," argued the motion to dismiss. "When battlefield conduct did not satisfy the standards of a domestic court, fear of personal tort liability rather than sound military policy could motivate decisions regarding sensitive matters of national security and the actions of our troops abroad." The wrong ruling could even "allow enemy detainees to enlist the courts in continuing hostilities against the United States and interfering with the execution of foreign and military affairs."
Which is why, the Justice Department said, the courts traditionally have left the waging of war to the warriors. "Judges have neither the experience nor the background to adequately and competently define and adjudge the rights of an individual vis-à-vis the needs of officials acting to defend the sovereign interests of the United States."
This was just one of the arguments for cutting Rumsfeld loose.
In 2006 Vance and Ertel were working for Shield Group Security, a firm providing security services in Iraq during the war. Their story is that they began feeding information to an FBI contact in Chicago, Vance's hometown, and to American officials in Baghdad about criminal behavior at SGS, including "massive illegal arms trading, stockpiling of weapons, kickback schemes, bribery, [and] fraudulent contract procurement." They said they'd heard an American colleague brag that he'd committed "brutal acts of violence" against Iraqis.
The upshot of their whistle-blowing? According to the story they tell, SGS turned suspicious and threatening, to the point that Vance and Ertel had to barricade themselves inside a room in the SGS compound until they were rescued by American military forces. But nothing happened to SGS. Instead, Vance and Ertel were accused of "supplying weapons and explosives to insurgent/criminal groups" and of "illegal receipt of stolen weapons and arms in Iraq from Coalition Forces."
Ertel was held six weeks before he was released, Vance more than three months. Neither was ever formally charged with anything. A citation written when Vance was awarded the 2007 Ridenhour Truth-Telling Prize, an award affiliated with the Nation Institute, said Nance smuggled notes out of Camp Cropper in a Bible, and later gave the New York Times "a rare and credible inside account of the Pentagon's detention operations." For whatever reason, "the military refused to believe or act on Vance's story, holding him even after the F.B.I. confirmed Vance's activities were legal and that he had been acting in the interests of the U.S. government."
In December 2006, Vance and Ertel, represented by the Chicago firm of Loevy & Loevy, filed suit against the United States, against Rumsfeld personally and against the unnamed Americans who'd allegedly tortured them. Their mishandling included "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."
The Americans "who caused them to be detained—U.S. officials stationed in Iraq, including State Department officials"—knew they were innocent, the suit asserts. And of course they knew that Nance and Ertel, as Americans themselves, were "entitled to the liberties and protections of the United States Constitution." For his part, Rumsfeld "approved and, at times, ordered the use of interrogation tactics [against them] that are universally condemned as torture," continuing to use them even after Congress passed the Detainee Treatment Act of 2005 to forbid "cruel, inhuman, or degrading treatment or punishment."
Rumsfeld's second argument for being dropped from the suit was that he deserved qualified immunity—someone who doesn't think so might call this the "too busy, too important, and too far from the scene of the crime" defense. A claim of qualified immunity must be adjudicated when it is raised, to spare a defendant the cost and inconvenience of preparing for an unnecessary trial, and as the motion to dismiss reminded Andersen, it was on Vance and Ertel to knock down the claim, not on Rumsfeld to justify it.
The plaintiffs would have to show that "Rumsfeld personally and plausibly deprived them of a constitutional right that was 'clearly' established at the time he allegedly violated it." They must show "Rumsfeld was 'personally involved in the deprivation of [their] constitutional rights."
And frankly, the Justice Department told Andersen, this was an idea that "cannot withstand even cursory scrutiny." The idea Rumsfeld kept tabs on every detainee in Iraq "is simply divorced from reality." The motion to dismiss, flirting with sarcasm, said the plaintiffs "seek to hold defendant Rumsfeld personally liable for prison guards at Camp Cropper steering them into walls, taking away their medication, waking them up, playing loud music, denying them food and water, keeping the lights on and the temperature low in their cells, and falsely accusing them of possessing contraband." The list went on.
To Rumsfeld's lawyers this idea was not simply foolish—it cited conduct that didn't even pass muster as an unconstitutional denial of due process, that is, conduct that "shocks the conscience" (a standard set by a unanimous Supreme Court in 1952). To the lawyers, nothing that happened to Vance and Ertel sounded all that bad. For instance, "both plaintiffs complain about medication like antacids or pain relievers being withheld. Yet a delay in receiving, or even a lack of, non-life-threatening medical treatment and medicine in a war zone does not 'shock the conscience.'"
The government's argument to cut Rumsfeld loose amounted to this: a lecture to Judge Andersen that a war is hell, it's chaotic, it's ad hoc, and it's no place for the judiciary to be playing schoolmarm.
But on March 5 Andersen rejected that argument. "Even if we were to agree with Rumsfeld that depriving plaintiffs of food and water or placing them in extreme segregation alone passes constitutional muster," he wrote, "this would not change our conclusion that plaintiffs have set forth the cumulative allegations necessary to state a claim of mistreatment."
What the evidence would eventually show, he did not know. The suit is not even at the discovery stage yet. But a determination that nothing that happened to Vance and Ertel shocks the conscience "is not one we may properly make at this stage."
And as for the argument that Rumsfeld was too remote from Camp Cropper to be held responsible for what happened there, Andersen deferred to the plaintiffs' argument that he was not. In April 2003 Rumsfeld allegedly approved a set of harsh interrogation techniques; in August he sent a Major Geoffrey Miller to Iraq to with instructions to "gitmo-ize" Camp Cropper; and in September he instructed the commander of the Coalition Joint Task Force to sign a memorandum authorizing the use of 29 interrogation techniques, many of them extreme. "Finally," wrote the judge, "plaintiffs allege that Rumsfeld, on the same day that Congress passed the Detainee Treatment Act, modified the Army Field Manual to include ten new interrogation techniques, including those allegedly use against plaintiffs."
As for what Rumsfeld knew or didn't know, Andersen noted the suit alleges that in May 2003 "the Red Cross began sending detailed reports that detainees within United States custody in Iraq were being mistreated," and that according to Colin Powell, then the secretary of state, Rumsfeld saw these memos and shared them with President Bush. At trial these allegations might be blown out of the water. But that would be then; this was now. "We conclude," wrote Andersen, "that plaintiffs have alleged sufficient facts to survive Rumsfeld's motion to dismiss on account of a lack of personal involvement."
And as for yet another point raised in Rumsfeld's motion to dismiss, that the U.S. Constitution lacks jurisdiction away from American soil, Andersen flatly rejected it. "American citizens do not forfeit their core constitutional rights when they leave the United States, even when their destination is a foreign war zone."
Mike Kanovitz of Loevy & Loevy expects Rumsfeld to appeal Andersen's opinion to the Seventh Circuit and if necessary to the Supreme Court, which he doubts would accept the case because "there's nothing that stands out as needing the Supreme Court to look at it." In deciding the suit should move forward, he said, Andersen merely made a "normal application of well-established law" —that it's unconstitutional to torture—says Kanovitz. "Now we let jurors decide what happened."
Vance and Ertel aren't available for comment. They're back overseas, working together for another contractor.