WASHINGTON, March 19 (LID) – A U.S. appeals court Monday will hear a Bivens case that former U.S. Defense Secretary Donald Rumsfeld can be held liable for the alleged torture of an American contractor in Iraq.
The Department of Justice has urged a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit to overturn a lower court ruling that Rumsfeld, defense secretary 2001-2006 under President George W. Bush, can be held personally liable for the alleged torture in military custody.
The DOJ argues the lawsuit should not be allowed to move forward because the Defense secretary cannot be sued personally for official conduct. Moreover, wartime decisions belong to the Congress and president, DOJ attorneys representing Rumsfeld said.
D.C. Circuit Chief Judge David Sentelle, Judge Janice Rogers Brown and Judge Thomas Griffith will hear oral arguments in the case.
In August, Judge James Gwin, sitting in the U.S. District Court for the D.C. District, rejected DOJ arguments, ruling the litigation may move forward.
“The court finds no convincing reason that United States citizens in Iraq should or must lose previously-declared substantive due process protections during prolonged detention in a conflict zone abroad,” Gwin wrote in a ruling.
“The stakes in holding detainees at Camp Cropper may have been high, but one purpose of the constitutional limitations on interrogation techniques and conditions of confinement even domestically is to strike a balance between government objectives and individual rights even when the stakes are high,” Gwin continued.
The plaintiff in the case, identified only as John Doe, was a civilian contractor who provided Arabic translation services to a U.S. Marine Corps Human Exploitation Team.
He alleged that Rumsfeld authorized his torture at overseas prisons operated by the U.S. military. Rumsfeld, further, denied him due process by which he could challenge his detention.
Doe sought a private right of action under Bivens v. Six Unknown Named Agents for money damages based on his alleged constitutional violations, including access to U.S. courts.
Doe said he was about to return to the United States in November 2005, when he was taken into U.S. custody and detained in a military jail at Camp Cropper, near Baghdad International Airport, for more than nine months.
The complaint alleged Doe was held in “torturous conditions of confinement,” where he was subjected to threats on his life and denied counsel. During the first three months of his detention, Doe was held incommunicado in solitary confinement.
The government claimed he had provided classified information to the enemy. He was never charged with a crime.
After a year in custody, a Detainee Status Board determined Doe was a threat to Multi-National Forces in Iraq and authorized his continued detention. At the hearing, Doe alleged he was not permitted to view evidence against him, to hear testimony against him or to cross-examine witnesses.
About six months later, in August 2006, Doe was placed on a military flight to Jordan and eventually brought to the United States.
In November 2008, Doe filed his lawsuit against the government.
In his lawsuit, Doe argued that he may challenge the conditions of his nine-month detention at Camp Cropper in a private right of action afforded in the Detainee Treatment Act of 2005 (DTA; 42 U.S.C. §§ 2000dd et seq.).
The federal district court rejected his DTA claim.
“[B]ecause the language of the Act is silent as to a private right of action for citizens, and because courts must refrain from inferring statutory causes of action in the absence of clear statutory intent, Doe cannot bring his claims under the DTA,” Gwin wrote in his ruling.
In May, the U.S. Supreme Court ruled unanimously that former Attorney General John Ashcroft could not be held personally liable for a policy that led to the 16-day detention of an American Muslim who was never charged with a crime.
The case is John Doe v. Donald Rumsfeld, No. 11-5209, D.C. Circuit.
The district court decision in Doe v. Rumsfeld is available at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1902-56.