An appeals court allows a suit against Donald Rumsfeld to go forward.

The law, lawyers, and the court.
Aug. 8 2011 7:22 PM


An appeals court allows a suit against Donald Rumsfeld to go forward.

(Continued from Page 1)

It's important to understand that the court makes no judgment on Vance and Ertel's claims. But for the purposes of Rumsfeld's motion to dismiss, the court is legally bound to treat their claims as if they are true. That's hugely consequential because, as Adam Serwer explained last week: "When deciding whether or not these cases are allowed to go forward, judges have to assume that the plaintiff's version of events is 'reasonable.' So part of what Rumsfeld and his team have to argue is that even if the allegations were true, the law doesn't allow Doe to sue the government for torturing him and detaining him without trial." Rumsfeld and the Obama administration have taken precisely this position. Even if everything Vance alleges is true, he still loses. They claim, in short, that Rumsfeld should be immune from suit because it was unreasonable to have expected him to know that the abuse he authorized was unconstitutional. They also raise claims about the dangers of judicial intrusions on the executive branch's war-making powers and—of course—about the danger of disclosing state secrets.

It's a pretty high standard for the plaintiffs to meet. As the court explains it, "the inquiry before us is whether the plaintiffs have pled sufficiently that defendant Secretary Rumsfeld personally established the relevant policies that authorized the unconstitutional torture they allege they suffered." But the majority finds that Vance and Ertel did plead sufficient facts to show that Rumsfeld had personal responsibility for their mistreatment.


Turning to the question of Rumsfeld's qualified immunity from suit, the majority finds that "plaintiffs have articulated facts that, if true, would show the violation of a clearly established constitutional right." Judge Hamilton reminds us that the questions about the legality of torture are not really "questions" at all, asking: "On what conceivable basis could a U.S. public official possibly conclude that it was constitutional to torture U.S. citizens?" He then quotes 18 USC, Section 2340A (the statute criminalizing overseas torture); the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment; and Siderman de Blake v. Republic of Argentina (a 9th Circuit decision finding that "it would be unthinkable to conclude other than that acts of official torture violate customary international law"). Hamilton writes that "The wrongdoing alleged here violates the most basic terms of the constitutional compact between our government and the citizens of this country. ... There can be no doubt that the deliberate infliction of such treatment on U.S. citizens, even in a war zone, is unconstitutional."

The majority addresses and dismisses the national-security and state-secrets claims. It's clear that for the majority, the fact that the victims here were American citizens abroad makes an enormous difference to the outcome of the case. When reached for comment today, Michael Kanovitz, who represents Vance and Ertel, reiterated that critical fact: "This court was faced with a choice between protecting the most fundamental rights of American citizens in the difficult context of a war or leaving those rights solely in the hands of politicians and the military. The court sided with the rights of the citizens. It was not an easy choice for the court to make, but it was the brave and right choice."

That it was a brave and right choice may not be enough to rescue this case if and when it ever comes to a trial. (The case may still be appealed to the full Seventh Circuit or to the Supreme Court.) It will be a challenge for the plaintiffs to show what they say they can prove. But the case, even as it stands today, should suffice to remind the rest of us that this isn't a case about foreigners at Guantanamo but a case about a Navy veteran caught up in a series of errors in the field. This case isn't about the rights of an enemy soldier detained on a battlefield with a weapon in his hand. It's about the rights of brave whistle-blowers who were tortured by bureaucratic mistake.

If you don't believe the war on terror is migrating into your backyard, this case is confirmation. If you don't think the state-secrets doctrine will be trotted out to protect the government's abuse of innocent Americans as well as foreign prisoners, this case proves it. If you worry that "turning the page" means always finding more of the same, this case makes that plain. A country in which nobody is ever really responsible is a country in which nobody is ever truly safe.



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