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

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

Damages

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

Former Secretary of Defense Donald Rumsfeld. Click image to expand.
Former Secretary of Defense Donald Rumsfeld

Last week, a federal district court judge in Washington, D.C., determined that a lawsuit filed against former Defense Secretary Donald Rumsfeld by a former military translator who claimed to have been tortured by U.S. forces at Camp Cropper in Iraq could go forward despite claims from Rumsfeld and the Obama administration that he should be immune from suit. After assessing the claims of "John Doe,"Judge James S. Gwin found that American citizens don't lose their constitutional rights simply because it's wartime. "The court finds no convincing reason," wrote Gwin, "that United States citizens in Iraq should or must lose previously-declared substantive due process protections during prolonged detention in a conflict zone abroad."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

On Monday, a three-judge panel from the Chicago-based 7th Circuit Court of Appeals came to pretty much the same conclusion. Reviewing a different lawsuit, filed by two different military contractors, alleging similar forms of abuse at the same camp, the panel determined, with one judge filing a partial dissent, that their suit against Rumsfeld could proceed.

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The case of Donald Vance and Nathan Ertel reads like Catch-22, updated for an even sillier war. In a 2006 profile of Vance for the New York Times, Michael Moss laid out the story: Vance was "a 29-year-old Navy veteran from Chicago who went to Iraq as a security contractor. He wound up as a whistle-blower, passing information to the FBI about suspicious activities at the Iraqi security firm where he worked, including what he said was possible illegal weapons trading. But when American soldiers raided the company at his urging, Mr. Vance and another American who worked there [Ertel] were detained as suspects by the military, which was unaware that Mr. Vance was an informer, according to officials and military documents."

Vance and Ertel became suspicious about activities at Shield Group Security the Iraqi security firm that employed them—activities that included stockpiling weapons and offering liquor to U.S. soldiers in exchange for bullets and weapon repairs. When he became an informant for the FBI, he was risking his life to protect national security. Shield Group Security began to suspect Vance and Ertel and things got hairy. A military team sent in to rescue them ended up shipping them to Camp Cropper and warehoused them at Compound 5, the maximum-security unit where Saddam Hussein was held.

Overnight, Vance and Ertel went from U.S. contractors to "enemy combatants," and both were allegedly subjected to sleep deprivation, aggressive interrogation, blindfolding, shackling, hooding, and "walling." Both were denied access to legal counsel for their appearances before the Detainee Status Board, and neither was allowed to see the evidence against them. Writing for the majority today, Judge David Hamilton doesn't mince words about this treatment:

After the plaintiffs were taken to Camp Cropper, they experienced a nightmarish scene in which they were detained incommunicado, in solitary confinement, and subjected to physical and psychological torture for the duration of their imprisonment—Vance for three months and Ertel for six weeks. They allege that all of the abuse they endured in those weeks was inflicted by Americans, some military officials and some civilian officials. They allege that the torture they experienced was of the kind "supposedly reserved for terrorists and so-called enemy combatants." If the plaintiffs' allegations are true, two young American civilians were trying to do the right thing by becoming whistleblowers to the U.S. government, but found themselves detained in prison and tortured by their own government, without notice to their families and with no sign of when the harsh physical and psychological abuse would end.

The two were never charged with any crime. Instead, in a resolution that looks ever more familiar, both were eventually dumped at the airport in Baghdad to make their own way home. They sued Rumsfeld and other "unknown defendants" for "their roles in creating and carrying out policies that caused plaintiffs' alleged torture." Rumsfeld moved to dismiss all claims. The district court agreed to dismiss some claims but allowed the case to proceed on others, including the claim that their treatment amounted to unconstitutional cruel, inhuman, and degrading treatment.

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