Rumsfeld Can Skate on Citizens’ Torture Claims

Even if a common-law damages remedy existed, Rumsfeld could not be held liable in this case because he was not personally involved in the detention and interrogation of Vance and Ertel, the majority held.

"Plaintiffs do not allege that Secretary Rumsfeld wanted them to be mistreated in Iraq," Easterbook wrote. "His orders concerning interrogation techniques concerned combatants and terrorists, not civilian contractors. What happened to plaintiffs violated both Rumsfeld's directives of 2002 and 2003."

In a 13-page concurring opinion, Judge Diane Wood agreed that Rumsfeld's remote involvement should shield him from liability.

"Civilized societies do not condone torture committed by governmental agents, no matter what job title the agent holds," Wood wrote. "I am confident that every member of this court would agree with that proposition. This is therefore a case of system failure."

She emphasized the concern inherent in creating immunity for all levels of military personnel.

"The majority has written with a broad brush with respect to those lower down in the chain of responsibility, and it does not seem to have drawn any distinction between the obviously culpable actors and those whose involvement may have been more indirect," the opinion states. "But perhaps it has: in the end I cannot tell whether the majority intends to preclude Bivens liability even for the direct actors. Either way, I find the gist of the majority's discussion troubling."

Judges David Hamilton, Ann Claire Williams and Ilana Rovner each penning their own dissenting opinions.

Hamilton began: "If a victim of torture by the Syrian military can find his torturer in the United States, U.S. law provides a civil remedy against the torturer [under the Torture Victim Protection Act of 1991]. ... The same could be said for victims of torture by any other government in the world - any other, that is, except one. Under the majority's decision, civilian U.S. citizens who are tortured or worse by our own military have no such remedy. That disparity attributes to our government and to our legal system a degree of hypocrisy that is breathtaking."

Trying to show that the State Department considers Bivens sufficient for private action in cases of torture, Hamilton pointed to a statement submitted to the United Nations Convention Against Torture. Coupled with the limited statutory defenses against personal liability included in congressional statutes, he argued that this indicates the presence of a Bivens remedy.

"Although the majority opinion is written in terms of whether to 'create' a cause of action under Bivens, the majority in effect creates a new absolute immunity from Bivens liability for all members of the U.S. military," Hamilton wrote. "This new absolute immunity applies not only to former Secretary Rumsfeld but to all members of the military, including those who were literally hands-on in torturing these plaintiffs. It applies to military mistreatment of civilians not only in Iraq but also in Illinois, Wisconsin, and Indiana."

Failing to provide damages to citizens whose rights are violated by the military leaves citizens "legally defenseless to serious abuse or worse by their own government," Hamilton concluded.

Williams primarily criticized the majority for overestimating the harms of judicial oversight, pointing out that courts can already issue injunctions to prevent constitutional violations under the Detainee Treatment Act.

"The judiciary is already intertwined in the constitutional review of military determinations," Williams wrote. "It is inconsistent to consider federal courts competent on the one hand to balance policy concerns associated with injunctive relief ... while treating these courts as unqualified to address actual injury to citizens caused by official abuse."

Vance and Ertel's case is "a quintessential scenario where Bivens should function to enforce individual rights," she added.

"Members of the armed forces enjoy unparalleled respect in our society," Williams concluded. "But this respect does not put the military's highest officers beyond the reach of the Constitution or adjudication by Article III courts. We would abdicate our duty if we permit Bivens to become a mirage."

In the past 15 months between the two 7th Circuit decisions, Vance and Ertel had learned the identities of the soldiers who allegedly mistreated them. Those individuals have not yet been added as defendants.

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