Donald Rumsfeld Can’t Be Sued for Torture

The law, lawyers, and the court.
Nov. 15 2012 5:12 PM

Why Donald Rumsfeld Can’t Be Sued for Torture

His latest and biggest court victory.

Former Defense Secretary Donald Rumsfeld testifies during a Senate Foreign Relations hearing.
The 7th Circuit Court of Appeals ruled that Donald Rumsfeld can't be sued by two Americans who were allegedly tortured.

Photo by Mark Wilson/Getty Images.

Former Defense Secretary Donald Rumsfeld may not be sued by two U.S. citizens who were tortured by members of the military. The U.S. Court of Appeals for the 7th Circuit, which issued the decision, is the third appeals court to let Rumsfeld off the hook legally. But the 7th Circuit decision goes further than the others. By a vote of 7-4, its judges said that no member of our military—presumably even one who personally inflicts torture—can be sued for his related conduct in office.

The facts are a case study in system failure. Donald Vance and Nathan Ertel were Americans working for a private security firm in Iraq. When Vance became suspicious that his employer was selling weapons to groups hostile to the United States, he went to the FBI. Vance and Ertel were then fingered as arms dealers. Military personnel arrested them in 2006 and held them for several weeks.

According to the complaint, Vance and Ertel were held in solitary confinement and subjected to violence, sleep deprivation, extremes of temperature and sound, denial of food, water, and medical care, and other abuses. Though the Army Field Manual (and four judges) calls this torture, the majority opinion prefers the euphemism “harsh interrogation techniques.”

Advertisement

The majority and the dissents clashed over military accountability and the role of the judiciary. The starting point for both sides is Bivens, a 1971 Supreme Court case that allows a victim of a constitutional violation to sue a responsible federal officer for damages when no other law or court ruling gives them an entry into court. The majority argued that the Supreme Court has spent the last three decades reining in Bivens, and it thus cannot sanction Vance and Ertel’s “novel damages remedy” against military personnel. The dissenters attacked this entire mode of analysis: It is incorrect to say that Vance and Ertel are asking the court to create a right to seek damages, they argued, because Bivens already provides it.

The majority also read Supreme Court precedent to say that civilian courts should not “interfere with the military chain of command” without guidance from Congress. And here, Congress has addressed the rights of detainees in laws such as the Torture Victim Protection Act and has chosen not to provide for damages against military personnel. End of story. The dissenters respond by accusing the majority of converting a narrow rule—one that prevents military personnel from suing for injuries related to their service—into a sweeping rule that shields the military entirely from lawsuits by civilians. One telling and troubling point they make: In the 7th Circuit now (Illinois, Indiana, and Wisconsin), a victim of torture by a foreign military who finds his torturer in the United States has a remedy, but a U.S. citizen who is tortured by his own military does not.    

Katie Mesner-Hage is a recent graduate of Yale Law School.

TODAY IN SLATE

Frame Game

Hard Knocks

I was hit by a teacher in an East Texas public school. It taught me nothing.

Chief Justice John Roberts Says $1,000 Can’t Buy Influence in Congress. Looks Like He’s Wrong.

After This Merger, One Company Could Control One-Third of the Planet's Beer Sales

Hidden Messages in Corporate Logos

If You’re Outraged by the NFL, Follow This Satirical Blowhard on Twitter

Sports Nut

Giving Up on Goodell

How the NFL lost the trust of its most loyal reporters.

How Can We Investigate Potential Dangers of Fracking Without Being Alarmist?

My Year as an Abortion Doula       

  News & Politics
Weigel
Sept. 15 2014 8:56 PM The Benghazi Whistleblower Who Might Have Revealed a Massive Scandal on his Poetry Blog
  Business
Moneybox
Sept. 15 2014 7:27 PM Could IUDs Be the Next Great Weapon in the Battle Against Poverty?
  Life
Outward
Sept. 15 2014 4:38 PM What Is Straight Ice Cream?
  Double X
The XX Factor
Sept. 15 2014 3:31 PM My Year As an Abortion Doula
  Slate Plus
Tv Club
Sept. 15 2014 11:38 AM The Slate Doctor Who Podcast: Episode 4  A spoiler-filled discussion of "Listen."
  Arts
Brow Beat
Sept. 15 2014 8:58 PM Lorde Does an Excellent Cover of Kanye West’s “Flashing Lights”
  Technology
Future Tense
Sept. 15 2014 4:49 PM Cheetah Robot Is Now Wireless and Gallivanting on MIT’s Campus
  Health & Science
Bad Astronomy
Sept. 15 2014 11:00 AM The Comet and the Cosmic Beehive
  Sports
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.