Donald Vance on Democracy Now! in August last year (photo: Democracy Now!)

The US Seventh Circuit Court of Appeals is set to rehear a civil suit against former Defense Secretary Donald Rumsfeld today. The suit, brought by Donald Vance, a US Navy veteran and former defense contractor, and Nathan Ertel, also a former defense contractor, alleges Rumsfeld is responsible for “intentional mistreatment” that occurred when they were tortured in an American-run prison in Iraq for nearly one hundred days.

As a New York Times editorial indicates, the case is significant because Vance is being given an opportunity to have a case that involves military conduct in war and/or national security matters get a hearing. The Court is the highest court, to date, to allow an individual to push a lawsuit against Rumsfeld for his involvement in executing policies of torture. [Note: Another case brought by a translator, who alleges he was abducted and tortured, is proceeding against Rumsfeld as well.]

In October 2005, Vance informed the FBI division in Chicago that US military personnel were involved in illegal weapons trading. Vance, who had served as a contractor in Iraq since 2004, had found out the contractor he was working for, Shield Group Security, was selling stashes of weapons to Iraqi officials, some that had ties to violent militias. Vance also had discovered other contractors, who worked for Shield Group Security, were providing liquor to US soldiers in exchange for ammunition and weapons repairs.

After Vance went to the FBI division in Chicago, he was asked to be an informant and return to Iraq. He learned his cover was blown a few months later.  He informed the US Embassy in Baghdad he felt threatened. He was told US Special Forces were coming to rescue Ertel and him.

The two contractors had their laptop computers, cell phones and cameras seized by US forces. They discussed sharing information related to Shield Group Security and then they were “sent to a trailer to sleep.”

They were woken up, arrested, handcuffed, blindfolded and then driven to Camp Prosperity. There they were held in solitary confinement for two days. They then were transported to Camp Cropper, a prison that Rumsfeld had been working to “Gitmo-tize.” At Camp Cropper, they were subjected to “enhanced interrogation techniques”—torture—like food manipulation and walling. They were not allowed to contact their families.

In August of last year, the Court determined, “If the plaintiffs’ allegations are true, two young American civilians were trying to do the right thing by becoming whistleblowers to the U.S. government, but found themselves detained in prison and tortured by their own government, without notice to their families and with no sign of when the harsh physical and psychological abuse would end.”

The Court found Vance and Ertel had a valid case under Bivens, which is the landmark case that ruled citizens could sue for monetary damages when officials violate their constitutional rights.

If Vance and Ertel won this suit, it would be a victory for those who have had their civil liberties or rights violated as a result of policies or programs established to wage the “war on terror.” Courts have not wanted to invoke Bivens so victims of abuse could be compensated. They have not wanted to side against federal officials.

This is reflected in the statement issued by the dissenting judge empaneled by the Court, Judge Daniel Manion, who did not think Vance’s suit should proceed because the judiciary would be “prying into matters of national security or disrupting the military’s efficient execution of a war.” In general, this is the argument officials from the Bush Administration and Obama Administration have employed to convince judges to not advance lawsuits against officials who served in their administrations.

Lawyers for Jose Padilla, a US citizen who was indefinitely detained without charge in 2002 and accused of plotting a “dirty bomb” attack, sought to be compensated for his mistreatment. On behalf of Padilla, they brought a civil suit against Secretary of Defense Leon Panetta and Rumsfeld that claimed he was tortured and illegally detained at a military prison in South Carolina. The suit was dismissed last January, when the Fourth Circuit Court of Appeals decided there was a “need to hesitate” before using Bivens because it might intrude upon the Executive Branch’s authority in military and national security affairs.

The Court found under the Authorized Use of Military Force (AUMF) the detention of Padilla by President George W. Bush should be accorded deference, as the courts are to show deference toward the Executive when granted authority from Congress. And, the suit ”would expose past executive deliberations affecting sensitive matters of national security to the prospect of searching judicial scrutiny.”

In June 2011, the US Court of Appeals for the District of Columbia Circuit dismissed a case against Rumsfeld brought by Arkan Mohammed Ali and other Afghani and Iraqi citizens that claimed they had been illegally detained and tortured in Abu Ghraib. It subscribed to the idea that, “authorizing monetary damages remedies  against  military officials  engaged  in  an  active  war would….obstruct the Armed Forces’ ability to act decisively and without  hesitation” in defense of liberty and American national interests.

A month prior, Abdullah Al-Kidd, a US citizen, brought a civil suit against former US Attorney General John Ashcroft for illegally detaining and holding him without charge for fifteen days. His lawyers argued Ashcroft had improperly invoked the material witness statute so that he (and other Muslims) could be rounded up, shackled and interrogated. But, the Supreme Court dismissed the suit and decided that there was not clearly established law for Ashcroft to have violated

It is incredibly agonizing for victims of abuse from “war on terror” policies to have so little promise for justice. The Judicial Branch is typically unwilling to be a check on civil liberties or constitutional rights violations committed by members of the Executive Branch. Citizens are expected to pursue a legislative remedy, because the courts claim they do not want to undermine laws passed by Congress. But, Congress, under the direction of the Executive Branch, which will undoubtedly commit abuses, is the body passing legislation that erodes civil liberties and constitutional rights for citizens (for example, the NDAA).

The Judicial Branch is a complicit actor when it does not take up cases because that might invalidate legislation and call into question wartime policies. Especially when you consider the fact that America could be “at war” for the next decades (given the political culture), it enables lawlessness when it decides cases against citizens because it does not want to inconvenience military or national security officials. Specifically, it makes it possible for federal officials to get away with torture of individuals and violations of due process.

Now, there is a cynical but important point to be raised: if it is agreed that US citizens enjoy equal protection under the law, the problem of questioning the Executive Branch during wartime is a big obstacle that Vance and Ertel’s case will have to overcome.  And if they do overcome it, they will have achieved a major victory. But, if one finds certain groups of people in society have in the past been viewed differently under the law, one might find Vance and Ertel have an advantage.

The civil suits dismissed thus far all have something in common. They were brought by individuals, who had been detained and interrogated for their alleged involvement in acts of terrorism. They were exactly the kind of people the US government wishes to have wide latitude to pursue and the kind of people, who would be targeted under the National Defense Authorization Act (NDAA), which grants the military power to indefinitely detain US citizens without charge.

In contrast, Vance and Ertel are former defense contractors. They are not and never were suspected terrorists. Their treatment, though probably no more of a constitutional rights violation than others who have had their suits dismissed, may be more appalling to judges because it may be harder for them to believe there was any legitimate reason why these men were handled by the military as if they were terror suspects. Vance was working for the FBI. He isn’t some brown-skinned student, who was going to study in Saudi Arabia.

Vance and Ertel’s background makes it possible for them to win, but any decision will be narrow. It will likely highlight all the reasons why Vance and Ertel’s case is not like previous cases dismissed so that brown-skinned Muslim victims of the “war on terror” will not think this is their cue to try and pursue their cases again. The Court will find some way to decide this was some kind of isolated incident that did not stem from a policy of torture being employed by the Bush Administration. I suspect the Court will bend over backwards to make sure they do not invalidate powers that the Executive Branch should continue to be able to employ.

Since the Obama Administration has decriminalized torture, it is hard not to draw this conclusion that there are certain demographics that the government finds deserve the right to pursue justice and certain demographics that the government finds do not deserve the right because they look too much like and have names too much like the people being fought in the “war on terror.” In this case, Vance may be a whistleblower the government would like to protect, because it may need informants in the future and wouldn’t want them to fear they might be tortured if they investigate a situation that might force the government to adjust operations.

The justice system in America should protect all persons, Americans included, from torture by the US government. It should not decide cases in ways that leave room for the military or national security agencies to commit brutal acts of torture of US citizens on US soil. It should not reinforce this idea that federal officials can get away with violating citizens’ rights and enjoy impunity. But, in the US today, all that doesn’t seem to matter when fears of “a far-reaching network of violence and hatred” striking America overshadow any concern for rights or civil liberties.

*For more on the case, watch Vance’s appearance on Democracy Now! last year.