Updated: 1:58 p.m.
An American defense contractor who claims he was tortured in U.S. military custody in Iraq cannot sue government officials for alleged misconduct, a federal appeals court in Washington said today.
The U.S. Court of Appeals for the D.C. Circuit rejected a legal path that would have allowed a U.S. citizen to recover damages flowing from military detention in a foreign war zone.
Allowing such an action, a three-judge panel said in its ruling "would hinder our troops from acting decisively in our nation’s interest for fear of judicial review of every detention and interrogation."
The three-judge appellate panel, ruling in favor of former Defense Secretary Donald Rumsfeld, declined to extend the reach of the so-called "Bivens remedy," named after a U.S. Supreme Court decision in 1971 that found federal drug agents violated due process rights.
"The implications of a Bivens action…is not something to be undertaken lightly," Chief Judge David Sentelle wrote in the court's opinion, joined by Judges Janice Rogers Brown and Thomas Griffith. A military detainee case, the judge said, raises "concerns regarding the conduct of war, the separation of powers, and the public scrutiny of sensitive information."
Sentelle wrote that Supreme Court "has never implied a Bivens remedy in a case involving the military, national security, or intelligence." In the 42 years since the decision in Bivens, Sentelle said, the high court has only twice extended Bivens remedies to new classes of cases.
Michael Kanovitz of Chicago's Loevy & Loevy, represented the plaintiff, with Jesselyn Radack of the Government Accountability Project. Doe, the plaintiff, was a civilian contractor and Army veteran who provided Arabic translation services to U.S. marines.
Kanovitz said this afternoon he was disappointed with the decision and intends to either ask the full D.C. Circuit to hear the case or pitch the dispute to the U.S. Supreme Court.
"A panel of the D.C. Circuit has held that a U.S. citizen who helps the war effort as a private contractor in a foreign warzone has no right to seek redress in American courts if the U.S. military abuses him, even for false detention and torture," Kanovitz said. "We think that the result is wrong, that it upsets the fundamental notion in our democracy that the judicial branch exists to enforce the constitutional rights of U.S. citizens, and that it ignores the express command of Congress, the people’s elected representative."
The Justice Department's Henry Whitaker argued in the D.C. Circuit that Rumsfeld should be immune from suit. The appeals court, however, did not reach the question of whether Rumsfeld is entitled to qualified immunity.
The D.C. Circuit last year in Ali v. Rumsfeld refused to embrace a suit by Afghan and Iraqi detainees whom the U.S. military detained abroad.
"In addition to our concerns that such a trial would deplete military resources, we recognized that 'allowing a Bivens action to be brought against American military officials engaged in war would disrupt and hinder the ability of our armed forces to act decisively and without hesitation in defense of our liberty and national interests,'" Sentelle said.
The D.C. Circuit said in today's ruling that the allegations raise questions about Rumsfeld's personal control over the treatment and release of detainees.
"Litigation of Doe’s case would require testimony from top military officials as well as forces on the ground, which would detract focus, resources, and personnel from the mission in Iraq," the appeals court said.
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