Donald Rumsfeld, a former U.S. defense secretary under President George W. Bush, won dismissal of a lawsuit brought by two Americans claiming he’s responsible for their alleged torture in Iraq.
The U.S. Court of Appeals in Chicago yesterday reversed a ruling last year by a three-judge panel that had upheld the right of security-firm workers Donald Vance and Nathan Ertel to pursue the suit they filed in 2006.
The men claimed they had been captured and tortured by U.S. military personnel in Iraq after trying to blow the whistle on illegal arms sales by their employer to groups opposing the American occupation. They alleged Rumsfeld had authorized the “harsh interrogation methods” to which they were subjected, according to the appeals court ruling.
“Even if we were to create a common-law damages remedy against military personnel and their civilian superiors, former Secretary Rumsfeld could not be held liable,” Chief U.S. Circuit Judge Frank H. Easterbrook wrote for the majority in the 8-3 ruling.
“He did not arrest plaintiffs, hold them incommunicado, refuse to speak with the FBI, subject them to loud noises, threaten them while they wore hoods, and so on,” Easterbrook said.
Vance and Ertel accused the former defense secretary of approving of those techniques and failing to reign in subordinates who used them without authorization, according to the decision.
U.S. Circuit Judge David F. Hamilton, author of last year’s three-judge ruling, wrote the dissenting opinion.
“Every member of this court recognizes that the job of the military is challenging, dangerous, and critical to our national security,” Hamilton said. “For these reasons and more, members of the armed forces enjoy unparalleled respect in our society. But this respect does not put the military’s highest officers beyond the reach of the Constitution,” or the courts.
“I think the majority opinion is incorrect,” Chicago attorney Michael Kanovitz, who represented Vance and Ertel, said in a telephone interview. Petitioning the U.S. Supreme Court for permission to appeal remains an option, he said.
The case is Vance v. Rumsfeld, 10-1687 and 10-2442, U.S. Court of Appeals for the Seventh Circuit (Chicago).