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The 7th Circuit Creates Absolute Immunity for Military Torturing Civilians

On Wednesday, the U.S. 7th Circuit Court of Appeals in Chicago overturned an earlier decision of a 3-judge panel of the 7th Circuit and in an 8-3 decision ruled that two American citizens cannot sue former Defense Secretary Donald Rumsfeld and others over torture in Iraq. The two men, Donald Vance and Nathan Ertel had alleged that they were tortured by the U.S. military in Iraq, and Rumsfeld and others in the military chain of command had developed, authorized and used harsh interrogation techniques against them. Earlier, in similar cases, both the 4th Circuit and the District of Columbia Circuit have rejected suits for damages against U.S. officials over allegations of torture.

In the instant case, the two complainants used to work for a private security company in Iraq, in 2006. They became concerned over illegal bribery and other corruption in the firm and they notified the U.S. authorities and cooperated with them. However, when they tried to act as whistleblowers against the private security firm, they were taken into custody by U.S. military forces and then taken to Camp Cropper near the airport in Baghdad. They allege that at Camp Cropper, they were subjected to harsh interrogation techniques and physical and emotional abuse.

Months later, they were dropped at the airport without any charges whatsoever against them, or any explanation as to what had happened and why. The men sued seeking unspecified damages holding violation of their constitutional rights with U.S. officials being fully aware that they were not guilty of any crimes for which they could be imprisoned or held against their will.

Last year, a three-judge panel of the 7th Circuit held that while it may be improbable for Rumsfeld to be personally responsible for such treatment of U.S. citizens, the complainants had sufficiently argued that decisions had to be taken at the highest level of government for them to receive such unusual treatment. However, on Wednesday, while rejecting the suit, the majority observed, “A court cannot say that, if there are too few prosecutions (or other enforcement), and thus too much crime, then the Attorney General or the Secretary of Defense is personally liable to victims of (preventable) crime.”

Three judges dissented, holding that the majority opinion was creating a dangerous precedent by postulating immunity for all members of the military, in violation of Supreme Court precedent. In his dissent, Judge David Hamilton said, “This new absolute immunity applies not only to former Secretary Rumsfeld but to all members of the military, including those who were literally hands-on in torturing these plaintiffs.”



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The lawyer for the complainants said that under the ruling “a civilian can never bring a claim to enforce their rights if they are violated by anyone in the U.S. military.”

The case is Vance et al v. Rumsfeld et al, U.S. Court of Appeals for the 7th Circuit, Nos. 10-1687, 10-2442.

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Posted by on November 8, 2012. Filed under Legal News. You can follow any responses to this entry through the RSS 2.0. You can skip to the end and leave a response. Pinging is currently not allowed.
  • The Ragings Scotsman

    The 7th Circuit remains, for those of us who have brought legitimate cases here, a distinctly ‘rebel’ circuit, in that the numerical majority of the membership of our Federal bench seem take particular aim at defying not only federal case law precedent, but indeed even that established by SCOTUS. That this circuit is willing to ignore decisions made above its own authority speaks volumes about politics in our district, which includes the democratic powerhouse of Chicago and perhaps the most corrupt number of state governors to ever be convicted in the entire country. I do not take issue with Indiana nor Wisconsin, since it appears that they are merely tag-alongs in the circus which is this Circuit’s sideshow of (so-called) treatment with regard to what might elsewhere be called justice. Here in Illinois, you see, you are unable to get justice or even something resembling it unless you are connected to powerful members of the legal, political or business community. The “great” city of Chicago even charges out-of-state visitors $250.00 fines if their automobile windows happen to be too dark for the city’s ordinance, forcing them to pay the fine….AND court costs, regardless of whether their primary residency is southern Texas, Arizona, New Mexico, etc. Apparently the city fathers just want to ‘get a taste’ from whomever visits our fine metropolis and happens to run afoul of an ordinance which they have no rational basis for being familiar with. Oh, and if a Chicago Transit Authority bus driver hits your car, maims or even kills you whilst running you down, you (or your estate) better be prepared to wait about ten years for a pittance of a settlement. Lest we forget our ‘gang in blue,’ it is widely known that almost any encounter with them may result in arrest (whether justified by the exigent circumstances or not), injury (up to and including being beaten, tased or even shot dead), or any number of causes of action for abuse of authority, false arrest, etc. Why, even their vehicles lie: on the side of all Chicago Police Department vehicles appears a city shield, around which is printed an incomplete statement: “We Serve () and Protect ().” Of course, what’s missing is, “We Serve (OURSELVES) and Protect (EACH OTHER).” The saddest truth is this has been a bad joke since the late 1960′s, and nothing has changed, except the Mayor is no longer a (King) Daley.
    In the best of all possible worlds, the highway signs one can read upon entering Illinois ought to warn visitors: “Welcome to Illinois, where anyone can get justice…for a price!”

    I’d rather be anywhere else, and as soon as I can, in the famous words of Billy Joel, “I-I-I-I’mmmm…getting OUT!”

  • Joseph Wyly

    Read the opinion. The immunity is for their property claims, and was “created” by the 7th Circuit. It was written in the Administrative Procedure Act, which prohibits judicial review of “military authority exercised in the field in time of war or in occupied territory,” 5 U.S.C. § 701(b)(1)(G). The Plaintiffs can go forward with their lawsuit for their alleged torture against all the litigants.

    caselaw.findlaw.com/us-7th-circuit/1576930.html#footnote_6

  • Joseph Wyly

    Excuse me, it was NOT “created” by the circuit court.

 

 


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