U.S. Citizen Detained in Iraq Can’t Sue Rumsfeld

     (CN) – A U.S. citizen who was imprisoned in a U.S. military facility in Iraq for nine months without being charged cannot sue the former Secretary of Defense, Donald Rumsfeld for violating his Fourth Amendment rights, a federal appeals court ruled.
     In 2004, John Doe, an employee of a defense contractor and U.S. citizen, says he traveled to Iraq to work as a translator for a United States Marine Corps Human Exploitation Team.
     According to Doe’s complaint, his job was to develop intelligence contacts with local Iraqis. In 2005, Doe says, he cultivated a relationship with Sheikh Abd Al-Sattar Abu Risha and encouraged him to work with the U.S.
     Later that year, Doe was allegedly detained by agents of the Navy Criminal Investigative Service (NCIS), who interrogated him about his work with Al-Sattar.
     He was then transported to Camp Cropper, a U.S. military facility near the Baghdad International Airport, where he was confined for nine months, according to his complaint.
     For the first three months, he says he was held in solitary confinement. Then he was transferred to a cell housing suspected members of al Qaeda, where Doe claims military officers announced his connection to the Department of Defense and encouraged his cellmates to attack him.
     Doe was released in 2006 and ultimately returned to the United States, but was never charged with a crime.
     In 2008, Doe sued former Secretary of Defense Donald Rumsfeld for violating his constitutional rights. The district court found that Rumsfeld did not hold qualified immunity with regard to Doe’s due process claims, but dismissed his other claims.
     On appeal, the U.S. Court of Appeals for the D.C. Circuit found that the district court’s reasoning incorrectly applied the Supreme Court’s 1971 decision in Bivens v. Six Unknown Named Agents.
     The Bivens decision permitted plaintiffs to sue public officials for violating their Fourth Amendment rights against unreasonable search and seizure, unless “special factors counsel[] hesitation in the absence of affirmative action by Congress,” U.S. Circuit Judge David Sentelle noted, writing for the three-judge panel.
     “The Supreme Court has never implied a Bivens remedy in a case involving the military, national security, or intelligence,” Sentelle said.
     He notes, “In his complaint, Doe challenges the development and implementation of numerous military policies and decisions. The complaint would require a court to delve into the military’s policies regarding the designation of detainees as ‘security internees’ or ‘enemy combatants,’ as well as policies governing interrogation techniques.
     “Doe’s allegations against Secretary Rumsfeld implicate the military chain of command and the discretion Secretary Rumsfeld and other top officials gave to NCIS agents to detain and question potential enemy combatants. The allegations raise questions regarding Secretary Rumsfeld’s personal control over the treatment and release of specific detainees. Litigation of Doe’s case would require testimony from top military officials as well as forces on the ground, which would detract focus, resources, and personnel from the mission in Iraq,” Sentelle continued.
     Given the military and national security implications of Doe’s allegations, Sentelle said, “Unlike the district court, we perceive that special factors present in this case counsel against the implication of a new Bivens remedy.”
     In addition, “As the district court recognized, the DTA [Detainee Treatment Act] created no private cause of action. Neither in that Act nor any other has Congress extended a cause of action for detainees to sue federal, military and government officials in federal court for their treatment while in detention. It would be inappropriate for this Court to presume to supplant Congress’s judgment in a field so decidedly entrusted to its purview,” Sentelle concluded.

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