JURIST - Paper Chase: Federal appeals court allows Rumsfeld torture suit to proceed

[JURIST] The US Court of Appeals for the Seventh Circuit [official website] ruled [opinion, PDF] Monday that a torture suit against former defense secretary Donald Rumsfeld [JURIST news archive] can proceed. Two American citizens brought a cause of action recognized in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics [opinion text] against Rumsfeld, claiming that he was personally responsible for the alleged unconstitutional treatment they faced while in detention in Iraq. Last year, a federal judge denied [JURIST report] Rumsfeld's motion by to dismiss the suit. Rumsfeld appealed the decision, but the appeals court sided with the district court's ruling:

[T]his case is not about constitutional rights, against torture or otherwise—the defendants readily acknowledge that the type of abuse alleged by the plaintiffs would raise serious constitutional issues. Rather, this case centers on the appropriate remedies for that abuse and who must decide what those remedies will be. ... [B]oth circuits confronted with allegations of constitutional violations in war zones have refused to recognize a Bivens remedy. ... The court vaults over this consensus and, for the first time ever, recognizes a Bivens cause of action for suits alleging constitutional violations by military personnel in an active war zone.

Sleep deprivation and physical abuse are among the tactics allegedly used by the military. On Rumsfeld's role in the case, the court added that, "plaintiffs have sufficiently alleged that Secretary Rumsfeld acted deliberately in authorizing interrogation techniques that amount to torture. (Whether he actually did so remains to be seen.)"

The appeals court ruling comes days after a judge for the US District Court for the District of Columbia [official website] ruled that Rumsfeld can be sued [JURIST report] by a former US military contractor who claims he was tortured while imprisoned in Iraq. The last several years have seen a rise in the number of suits brought against Bush administration officials. Earlier this year, the US Court of Appeals for the District of Columbia Circuit [official website] upheld the dismissal [JURIST report] of a torture suit against Rumsfeld brought by four Afghan and five Iraqi citizens alleging they were illegally detained and tortured. Also this year, the US Supreme Court [official website] ruled [opinion, PDF] in Ashcroft v. al-Kidd [Cornell LII backgrounder] that former US attorney general John Ashcroft [JURIST news archive] is immune from suit [JURIST report] by a witness detained in a terror investigation.