A federal appeals court in Washington is weighing whether an American contractor's torture suit against former Defense Secretary Donald Rumsfeld can proceed.
The contractor, a U.S. citizen and Army veteran who had been providing Arabic translation services to the military in Iraq, sued Rumsfeld in Washington's federal district court. A trial judge in August refused to throw out the case, prompting the U.S. Justice Department to appeal.
An attorney for the plaintiff, who is identified in court papers only as John Doe, said today in the U.S. Court of Appeals for the D.C. Circuit that Congress has not barred civil actions by Americans who alleged torture while in U.S. military custody.
“If Congress wanted no actions, it would have said it,” Michael Kanovitz of Chicago’s Loevy & Loevy said in court. Congress, Kanovitz argued, anticipated such litigation when lawmakers fashioned an immunity defense for government officials.
A Justice Department lawyer, Henry Whitaker of the Civil Division appellate staff, asked the appeals court not to create a new cause of action. Whitaker said the plaintiff’s U.S. citizenship has no bearing on the outcome of the case.
“The sensitivities that cry out in this case for deference to Congress” do not depend on the plaintiff’s identity as a U.S. citizen, Whitaker said. “They depend on the context involved here, the issues the suit raises.”
In court papers, DOJ lawyers said the courts should not play a role in this case to question the constitutionality of detention and interrogation policy.
D.C. Circuit Judge Thomas Griffith suggested the plaintiff’s citizenship must account for something. “There’s no way to distinguish between a person who has claimed to be tortured who is not a citizen and one who is?” the judge asked. “There’s no difference between those two at all?”
A trial judge, Whitaker said, would be forced to examine detention policies—the creation, justification and application up and down the chain of command—if the suit is allowed to proceed. “Let’s not forget that this is conduct that occurred in a foreign combat zone,” Whitaker said in court.
The appellate panel, which also included Chief Judge David Sentelle and Judge Janice Rogers Brown, did not immediately rule today.
Washington’s Katz, Marshall & Banks filed a friend-of-the-court brief on behalf of the nonprofit whistleblower advocate Project On Government Oversight in support of the plaintiff.
"Allowing a judicial remedy for citizens whose constitutional rights have been violated will create a strong deterrent for such behavior, and there is no reason to expect that the military will be called upon to defend cases of this nature frequently," the amicus brief said.
Jesselyn Radack of the Government Accountability Project, which advocates for whistleblowers, also represents the plaintiff. Kanovitz and Radack described the plaintiff in court papers as a "loyal American citizen who served his country courageously and honorably as a civilian during the war in Iraq."
The plaintiff, was detained for nine months, until August 2006, in a military prison in Baghdad, according to the suit. The complaint alleges that Rumsfeld and others were aware that interrogation techniques in play at the Guantanamo Bay facility in Cuba were also being used in Iraq.
Whitaker said in a letter last week to the appeals court that the plaintiff did not complain about alleged mistreatment before he filed suit. DOJ said "no contemporaneous or later criminal inquiry or investigation was conducted by the military or law enforcement officials."