CHICAGO, August 8, 2011 ― A federal appeals court today rejected former Defense Secretary Donald Rumsfeld’s attempt to dismiss an anti-torture suit against him.

The 7th Circuit Court of Appeals upheld Federal Judge Wayne R. Anderson’s March 2010 decision to allow the suit over Rumsfeld’s orders which allegedly led to the 2006 torture of two military contractors, Donald Vance and Nathan Ertel, U.S. citizens who were working in Iraq.

The Appeals Court is now the highest court to have upheld the right of citizens to pursue an anti-torture claim against a federal Cabinet-level official. A copy of the decision can be found here.

The Appeals Court, in a decision written by Judge David F. Hamilton, expressed its belief that the issues raised by the case go to the very heart of the constitutional democracy that “We the People” formed:

“The wrongdoing alleged here violates the most basic terms of the constitutional compact between our government and the citizens of this country. . . . . Viewing the complaint in the light most favorable to the plaintiffs, as we must at this stage, this is exactly what the plaintiffs have pled. There can be no doubt that the deliberate infliction of such treatment on U.S. citizens, even in a war zone, is unconstitutional.”

Commenting on today’s decision, Mike KanovitzMike Kanovitz of Loevy & LoevyLoevy & Loevy, the lead attorney in both Vance and Doe, said,

“This Court was faced with a choice between protecting the most fundamental rights of American citizens in the difficult context of a war or leaving those rights solely in the hands of politicians and the military. The Court sided with the rights of the citizens. It was not an easy choice for the Court to make, but it was the brave and right choice.”

The case, Donald Vance and Nathan Ertel v. Donald Rumsfeld, et al (06 C 6964), is one of only two cases out of over a dozen alleging Rumsfeld’s responsibility for torture that have been allowed to proceed. The other is John Doe v. Donald Rumsfeld, et al (08-cv-1902 CKK). In both cases the plaintiffs are represented by Mike Kanovitz, Jon Loevy and Gayle Horn of the Chicago-based civil rights firm, Loevy & Loevy, with the Washington, DC-based nonprofit Government Accountability Project acting as co-counsel in Doe v. Rumsfeld. Last week the U.S. District Court for the District of Columbia rejected Rumsfeld’s attempt to dismiss the Doe suit against him (see that decision here).

Background
In 2006, Donald Vance, a Navy veteran, and Nathan Ertel were imprisoned without charges in a U.S. military prison in Iraq: Vance for over three months and Ertel for one and one-half months. Both men, who were private security employees in Baghdad, named former U.S. Defense Secretary Donald Rumsfeld as a defendant for his role in overseeing the military prison system in Iraq.

Rumsfeld allegedly issued orders allowing torture techniques which caused Vance and Ertel to be subjected to extreme sleep deprivation, “walling,” “hooding,” interrogation for hours at a time, and to be held in an extremely cold cell without adequate clothing or blankets, and periodically denied food and water for long periods. During virtually Vance’s entire three month imprisonment at the notorious Camp Cropper near Baghdad International Airport, he was held in solitary confinement in a continuously lit, windowless cell.

“Plaintiffs…allege that in August 2003 Rumsfeld sent Major Geoffrey Miller to Iraq to review the United States prison system,” read Andersen’s decision. “Plaintiffs claim that Rumsfeld informed Major Miller that his mission was to ‘gitmo-ize’ Camp Cropper… These allegations, if true, would substantiate plaintiffs’ claim that Rumsfeld was aware of the direct impact that his newly approved treatment methods were having on detainees in Iraq… Based on these allegations, we conclude that plaintiffs have alleged sufficient facts to survive Rumsfeld’s motion to dismiss on account of a lack of personal involvement… Accepting at this stage that these treatment methods were in fact used, we conclude that a court might plausibly determine that the conditions of confinement were torturous.”

As employees of Shield Group Security (SGS), Vance and co-worker Ertel suspected their employer of paying local sheiks for influence in obtaining government contracts and of other illegal dealings. To combat the suspected illegal activity, Vance and Ertel became unpaid informants to the FBI in Chicago and U.S. officials in Iraq. When SGS officials threatened Vance's and Ertel's lives, they arranged for U.S. military forces to rescue them. But after a few hours of interrogation and then rest at the U.S. embassy, the U.S. imprisoned Vance and Ertel, beginning their nightmarish imprisonment without habeus corpus.. Once they were in U.S. custody, low-level bureaucrats invoked the unprecedented powers Rumsfeld had given them to imprison Mr. Vance and Mr. Ertel as "persons of interest" to the United States. Three months of interrogation followed, in which Mr. Vance and Mr. Ertel were physically abused and denied the right to counsel, the right of access to the courts, and any legitimate process to challenge thier illegal detention.