David Vance – a Navy veteran – was working for an Iraqi security company in 2006. He began to suspect his employer of corruption. Vance and fellow whistleblower Nathan Ertel gave evidence to the FBI, but their employer became suspicious of their efforts and effectively detained them. When they were transferred to the custody of U.S. troops, the men thought that they were being rescued. They claim that instead they were detained on suspicion of aiding the enemy—and tortured for weeks.
Last week, the Seventh Circuit Court of Appeals allowed Vance and Ertel’s lawsuit against former Secretary of Defense Donald Rumsfeld to proceed. Their suit alleges they were “detained incommunicado, in solitary confinement, and subjected to physical and psychological torture . . . .” The plaintiffs allege they were subjected to extremely cold temperatures and physical abuse, and deprived of sleep, food, and necessary medical care. Neither was charged with a crime. The men filed a Bivens claim against Rumsfeld and others. The Seventh Circuit affirmed that the plaintiffs had sufficiently pled Rumsfeld’s personal responsibility and affirmed the denial of qualified immunity.
The plaintiffs’ American citizenship was crucial to the holding in Vance v. Rumsfeld. From the first sentence, the Seventh Circuit repeatedly emphasizes that the claims raise “fundamental questions about the relationship between the citizens of our country and their government.” The court rejects qualified immunity because no reasonable official could conclude that it was constitutional to torture an American. Although Rumsfeld argued courts should not rule on cases arising out of battlefield decisions, the court responded that no appellate court “has ever denied civilian U.S. Citizens a civil remedy for their alleged torture by U.S. government officials.” The court distinguished the case from those involving non-citizen plaintiffs. The D.C. Circuit held that foreign citizens captured on a battlefield could not sue under Bivens, and the Second Circuit held that special factors precluded recognition of a Canadian’s Bivens claim for abuses allegedly suffered during “extraordinary rendition.”
A federal court in South Carolina recently threw out a different lawsuit by an American citizen against Rumsfeld. The court dismissed a Bivens claim by Jose Padilla, an alleged terrorist, because of both qualified immunity and special factors, such as the potential for a “massive discovery assault” on American intelligence agencies. Padilla had more luck in a California court against former Department of Justice attorney John Yoo. Rejecting Yoo’s motion to dismiss the Bivens claim, the court emphasized the plaintiff’s lack of an alternative remedy and ruled that hearing the case would not infringe the executive branch’s authority to wage war. Circuit courts have yet to review these cases, and if they disagree, the Supreme Court will likely have to decide these issues.
Given its recent hesitation to extend Bivens, the Court may decline to distinguish contrary cases based on the plaintiffs’ citizenship. Vance hinged on the idea that a government torturing its citizens violates the basic principles of our constitutional compact, but that does not explain how the same special factors are not present in cases involving American plaintiffs. The Court is unlikely to treat Bivens as a balancing test, in which the interests on the plaintiffs’ side seem greater when they are Americans. Given the sensitive nature of these claims and the evidence they require, the Court could find special factors that counsel hesitation in the face of Congressional silence. The Roberts Court has rejcted a few Bivens claims in recent Terms. The Vance court acknowledges problems in ruling on events at a military prison in a war zone. The dissent in Vance said the plaintiffs’ alien status was not the only special factor in contrary cases, noting “the risk of the judiciary prying into matters of national security or disrupting the military’s efficient execution of a war.”
Affirming Vance could establish some accountability for our government’s systematic torture of alleged terrorists. The ruling – even if limited to civilian American citizens – could finally hold accountable one of the government officials involved in “enhanced interrogation” policies. Some are encouraged that the Department of Justice has stopped defending Rumsfeld in Padilla’s suit. The Bush administration generally blamed low-ranking soldiers for exceeding the boundaries of the enhanced interrogation program, but that is not justice. Some branch of government must try to understand how high-level officials were involved in this abuse. At the very least, plaintiffs like Vance must be made whole.