Two Men’s Lawsuit on Treatment by Troops to Go Forward, Appeals Court Says

Former U.S. secretary of defense Donald Rumsfeld must face a lawsuit filed against him by two American men claiming they were wrongfully held and tortured by U.S. forces in Iraq.

The U.S. Court of Appeals in Chicago yesterday upheld a lower court ruling last year allowing the men, Donald Vance and Nathan Ertel, to pursue claims that Rumsfeld should be found personally liable for their treatment.

Ertel and Vance, in a 2006 federal lawsuit, claimed they were taken into custody, then held at the U.S. Army’s Camp Cropper while working for Iraqi-owned Shield Group Security after reporting to the U.S. what they believed was illegal activity by their employer and American personnel.

“We conclude that plaintiffs have sufficiently alleged that Secretary Rumsfeld acted deliberately in authorizing interrogation techniques that amount to torture,” U.S. Circuit Judge David Hamilton wrote for the three-judge panel.

Whether Vance and Ertel can actually prove that assertion “remains to be seen,” the court said.

David B. Rivkin, a lawyer for the former defense secretary, criticized the court ruling in a statement issued by Rumsfeld’s office in Washington. He said it endangers U.S. soldiers.

‘Decision Is Troubling’

“Today’s decision by the Seventh Circuit Court of Appeals is a blow to the U.S. military,” Rivkin, a partner in Cleveland-based Baker Hostetler LLP, said yesterday. “This decision is troubling, particularly for the uniformed personnel throughout the entire chain of command who are defendants in this lawsuit. Having judges second-guess the decisions made by the armed forces halfway around the world is no way to wage a war.”

Charles Miller, a spokesman for the U.S. Justice Department, said by phone he couldn’t immediately comment on the court’s decision. The department is representing Rumsfeld and the U.S. in the case.

The defense was appealing a ruling last year by U.S. District Judge Wayne Andersen in Chicago. Rumsfeld resigned his position in the Cabinet of President George W. Bush in December 2006.

“They had an important decision to make involving the constitutional rights of citizens in the difficult context of a wartime, which is when constitutional rights get strained,” attorney Michael Kanovitz, who represents Vance and Ertel, said by phone yesterday. “It made the correct choice to protect those rights.”

Stripped of Access

Ertel, a native of Virginia, had worked as a government contractor for 13 years, according to the complaint. Vance, who was born in Illinois, had served in the U.S. Navy.

“Plaintiffs are not now, and never have been, terrorists or enemies of the United States,” according to their complaint. After reporting what they’d observed, they were stripped of their access passes to Baghdad’s so-called Green Zone by other Shield workers, requiring them to seek “rescue” by U.S. armed forces in April 2006, according to last year’s ruling.

The men were then taken to the U.S. Embassy, separated, questioned by FBI and military intelligence agents, and later held in solitary confinement at Camp Cropper near Baghdad International Airport, according to the complaint.

The men claimed they were subjected to sleep and food deprivation, threats of violence, actual violence and prolonged solitary confinement, according to last year’s decision.

In Solitary

Vance was held in solitary for three months, while Ertel was kept in the same state for six weeks, according to yesterday’s majority ruling, citing their complaint. They were never charged with a crime.

The appellate panel rejected the plaintiffs’ claims for lost personal property.

Agreeing with Andersen, the majority said it saw “no persuasive justification” for depriving U.S. citizens “of a civil judicial remedy “for torture or even cold-blooded murder by federal officials and soldiers, at any level, in a war zone.”

U.S. Circuit Judge Daniel Manion disagreed with the majority’s conclusion that the men could pursue claims that their constitutional rights were violated.

Rivkin argued before the appellate panel on behalf of former U.S. Vice President and Defense Secretary Dick Cheney, who served under presidents George W. Bush and George H.W. Bush, and for former Defense Secretary William S. Cohen, who served under President Bill Clinton. Cheney and Cohen had filed a friend-of-the-court brief, and weren’t parties to the lawsuit.

‘Completely Deferential’

In his statement yesterday, Rivkin predicted the ruling would be reversed.

No trial date has been set, Kanovitz said. Asked what his clients sought as compensation, he replied, “They are completely deferential to the jury. Whatever the jury thinks is just.”

The lower case is Vance v. Rumsfeld, 06-cv-06964, U.S. District Court, Northern District of Illinois (Chicago). The appellate case is Vance v. Rumsfeld, 10-1687 and 10-2442, 7th U.S. Circuit Court of Appeals (Chicago).

To contact the reporter on this story: Andrew Harris in Chicago at aharris16@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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