JURIST Guest Columnist Susan Hu of the Center for Constitutional Rights says that the Seventh Circuit misinterpreted Supreme Court precedent in Vance v. Rumsfeld and consequently diminished a fundamental constitutional protection…

In a recent en banc opinion, the US Court of Appeals for the Seventh Circuit dismissed a Bivens damages suit against former Secretary of Defense Donald Rumsfeld brought by two US citizens who were tortured by members of the US military. Plaintiffs Donald Vance and Nathan Ertel, civilian employees of a private US contractor in Iraq, alleged that they were detained and tortured in Iraq by US military personnel after the military learned that the plaintiffs had been informing the FBI about illegal weapons trading by military members. Writing for the majority in Vance, Judge Frank Easterbrook concluded that the US citizen-plaintiffs were categorically barred from bringing a civil suit against Rumsfeld for his alleged role in their mistreatment, even though there was likely no adequate alternative forum for their claims.

While both the US Court of Appeals for the DC Circuit and the US Court of Appeals for the Fourth Circuit have improperly dismissed Bivens suits filed by victims seeking civil damages for unlawful mistreatment or torture at the hands of the US military (Doe v. Rumsfeld, Ali v. Rumsfeld and Lebron v. Rumsfeld), the flaws in Vance go even deeper.

In barring this suit, the Vance majority relied heavily on two, heretofore narrow, Supreme Court opinions involving suits against the military — Chappell v. Wallace and US v. Stanley — but neither case contemplated the principle announced by the Seventh Circuit. In Chappell and Stanley, the Court declined to provide a Bivens remedy for soldiers or former soldiers who sued their employer for injuries sustained while in the military. By contrast, Vance and Ertel were civilians, not military personnel, who were kidnapped and tortured by the US military. The majority brushes aside this distinction, but it is vitally important. A civilian court’s hesitation to step into military affairs involving parties who elect to join the military and be subject to its unique system of discipline and justice is one thing; a decision not to interfere when the military violates the constitutional rights of civilian citizens is quite another. As the Stanley Court expressly explained, its “incident to service rule” was motivated by a desire to protect the military’s prerogatives and expertise in training, disciplining and developing its own soldiers who have elected to abide by those norms. Its rule therefore prohibited only damages suits by military personnel arising out of military service, but not more.

Nevertheless, to support its reading of Chappell and Stanley, the Vance majority argues that a Bivens remedy would force the US secretary of defense to focus less on the “best military policy” and more on his own personal finances. The possibility of civil damages, warns the Seventh Circuit, “would lead the Secretary to hold the rights of detainees in higher regard … [which] would come at an uncertain cost in national security.” The court fails to explain — perhaps because it cannot — just how the country’s security would be imperiled should Bivens liability, a remedy long available to US citizens, provide an additional incentive for the military to abide by the US Constitution. As the Bivens Court noted, the fundamental purpose of Bivens dates back to Marbury v. Madison and simply goes to “the right of every individual to claim the protection of the laws, whenever he receives an injury.” Surely the court would agree that even the best military policy must adhere to constitutional values and advance that fundamental principle. Additionally, while rushing to criticize civilian courts for lacking expertise to review military decisions, the majority ignores history and Supreme Court precedent. Article III courts have competently evaluated military action — including whether soldiers have violated military law — for centuries. Further, as the Supreme Court expressly noted in Hamdi v. Rumsfeld, the fact that expertise might lie in another branch of government does not absolve the judiciary of its fundamental responsibility to vindicate constitutional interests and protect individual rights.

A final, deeply concerning consequence of this decision: ten days after the Vance decision came down, the UN Committee Against Torture (CAT) published its third General Comment [PDF] on the Convention Against Torture, making clear that granting immunity from torture is a violation of a nation’s obligations under the Convention (which the US ratified in 1994). Stating that national security arguments may not be used under any circumstances to deny redress for torture victims — a direct repudiation of the Court’s reasoning in Vance — the committee added that a nation’s failure to allow civil remedies for torture may constitute a “de facto … violation” under the Convention. Human rights and civil liberties organizations have been making this argument for years, but the committee’s official interpretation of the convention it oversees makes the most compelling case yet: Vance — and other decisions shielding military members from liability in civil courts — directly flouts this nation’s obligations under international law.

How the Seventh Circuit decision might affect other Bivens suits against the military remains unclear. Given the opinion’s substantial flaws, not the least of which is its obvious misreading of Supreme Court precedent, Vance should provide no shortage of opportunity for future Bivens plaintiffs to limit the court’s reasoning to the facts in that case. However, for Vance and Ertel, who now have no other means to obtain accountability for their torture, that must come as cold comfort.

Susan Hu is the Social Justice Institute Legal Fellow for the Guantanamo Global Justice Initiative at the Center for Constitutional Rights (CCR). Her work focuses on challenging the detention of prisoners at Guantanamo Bay and other post-9/11 government abuses emerging from the “war on terror.” Prior to coming to CCR, Susan was a Legal Fellow at the Center for Appellate Litigation, where she litigated criminal appeals and related post-conviction proceedings.

Suggested citation: Susan Hu, Vance v. Rumsfeld: An Erosion of Torture Protection, JURIST – Hotline, Dec. 13, 2012, http://jurist.org/hotline/2012/12/susan-hu-vance-torture.php .