torture “is a part of human nature,” says Seventh Circuit, and “very difficult to control”

In an 8-3 en banc ruling last week, the Seventh Circuit gave the government broad immunity from suits based on claims of torture, even by American citizens, according to the Washington Post:

Donald Vance and Nathan Ertel filed a lawsuit claiming they were detained in 2006 and tortured after they accused an Iraqi-owned company they worked for of illegally running guns. They argued Rumsfeld personally approved interrogation methods for use by the U.S. military in Iraq, making him responsible for what happened to them during several weeks they were held in military camps.

The 8-3 ruling by the full 7th U.S. Circuit Court of Appeals, posted Wednesday afternoon on the court’s website, found there’s no law granting the men rights to sue Rumsfeld or others in the line of military command. In such a vast bureaucracy, the ruling says, he couldn’t be responsible for subordinates who end up crossing legal bounds.

“The secretary of defense has more than a million soldiers under his command,” the ruling says. “People able to exert domination over others often abuse that power; it is a part of human nature that is very difficult to control.”

The ruling overturns one last year by a three-judge panel of the same court, which gave the lawsuit the green light to go forward.

The opinion is here.

Some things should be noted — the court did not find that there was insufficient evidence to support the claim. Nor is it the case that lack of specific statutory authorization is inherently an obstacle to a private right of action — i.e., the right to sue an agent of the government personally. (The two lower courts to hear the case cited Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for the judicial authority to “create a private right of action for damages against persons in the military chain of command.”)

Rather, the court simply felt that the judiciary shouldn’t go mucking around in military matters:

The Supreme Court’s principal point was that civilian courts should not interfere with the military chain of command — not, that is, without statutory authority. Chappell [v. Wallace, 462 U.S. 296 (1983)] observed that military efficiency depends on a particular command structure, which civilian judges could mess up without appreciating what they were doing.

This is a fairly astounding thing to say. After all, Hamdi v. Rumsfeld interfered with the military chain of command’s decision-making process. And one of the most infamous cases in American jurisprudence, Korematsu v. United States — widely regarded as one of the Court’s weakest moments — relied on the principle of non-interference in military matters:

Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this.

Of course, in Korematsu the Court was at least presuming that the military was acting in good faith. No such presumption is possible in this case, however, because Vance and Ertel claim that they were imprisoned and tortured for being whistleblowers. This is not a case out of 24, where maybe you have to “bend the rules to save lives.” This is a case in which, if the allegations are true, agents of the U.S. government held and abused U.S. Citizens for pointing out crime and corruption. There can be no presumption of good faith in such a situation.

The court goes on to say that

What plaintiffs want is an award of damages… that would make the Secretary of Defense care less about the Secretary’s view of the best military policy, and more about the Secretary’s regard for his own finances. Plaintiffs believe that… would lead the Secretary to hold the rights of detainees in higher regard — which surely is true, but that change would come at an uncertain cost in national security.

If the judiciary never erred, damages awards against soldiers and their civilian supervisors would be all gain and no loss. But judges make mistakes: They may lack vital knowledge, may accept claims that should be rejected on the facts or the law, or may award excessive damages on justified claims or create supervisory liability when they shouldn’t.

So the main argument is that judges aren’t perfect and may make mistakes, which could hamper military operations. Then where should the abused prisoner seek his remedy? Why, with the United States Congress — which is happily immune from mistake! (Or, alternatively, with the very Executive Branch that abused him in the first place.)

Congress and the Commander-in-Chief (the President), rather than civilian judges, ought to make the essential tradeoffs, not only because the constitutional authority to do so rests with the political branches of government but also because that’s where the expertise lies….

The political branches have not been indifferent to detainees’ interests. To the contrary, the treatment of military detainees has occasioned extended debate and led to a series of statutes. The Detainee Treatment Act is one. Others enacted or amended in the past decade include the Torture Victim Protection Act, 28 U.S.C. §1350 note; the Military Claims Act, 10 U.S.C. §2733; the Foreign Claims Act, 10 U.S.C. §2734; the Military Commissions Act, 10 U.S.C. §948a et seq.; the federal torture statute, 18 U.S.C. §§ 2340–2340A; the War Crimes Act, 18 U.S.C. §2441; and the Uniform Code of Military Justice, 10 U.S.C. §801 et seq. These statutes have one thing in common: none provides for damages against military personnel or their civilian superiors. Some, such as the Detainee Treatment Act, expressly block damages liability…. Others provide compensation to victims of military errors or misconduct, but the compensation comes from the public fisc rather than private pockets.

There are so many terrible errors here, it’s hard to know where to start. First, is it simply unimaginable to the court that Congress, in declining to create a private right of action, did so not out of a high-minded balancing of the equities, but because the political branches have created a kind of “thin blue line” protecting political officers from repercussions? Is it so inconceivable that the people who regularly socialize with Donald Rumsfeld in Washington — many of whom may want to be cabinet members themselves someday — might decline to create a right of action against him? Second, the reason we have private actions against government agents in the first place is that the government technically has sovereign immunity. If it wanted to, Congress could simply pass a law retracting all waivers of sovereign immunity, and then, according to the Seventh Circuit, there would be no remedy at all for those tortured and abused by government agents.

But most importantly, the court seems to think that courts should simply defer to Congress as to remedies even when we assume that constitutional rights have been violated, because the political branches have the “expertise” to determine the correct and appropriate remedies against military abuses.

Well, good. Congress is on the case; the Executive has got the “expertise” — why do we even need courts? Seems like they’re a bit of a third wheel, honestly. Just gumming up the works.

The court also noted that the Supreme Court, in Ashcroft v. Iqbal, ruled that supervisors are not vicariously liable for their subordinates’ misbehavior unless they know about it and want it to happen. The plaintiffs here argued that Rumsfeld did want them to be tortured (or at least wanted somebody to be tortured), because he circulated policies allowing for “enhanced interrogation” in 2002-2003, and then did little to walk those policies back or ensure that they weren’t misinterpreted.

The court, however, found that this was insufficient to trigger a private cause of action against Rumsfeld:

His orders concerning interrogation techniques concerned combatants and terrorists, not civilian contractors. What happened to plaintiffs violated both Rumsfeld’s directives of 2002 and 2003, and the Detainee Treatment Act of 2005. In an ideal world, the Secretary of Defense and the Army’s Chief of Staff would have achieved full compliance with the Detainee Treatment Act, but a public official’s inability to ensure that all subordinate federal employees follow the law has never justified personal liability.

Of course, this ignores the fact that Vance and Ertel were temporarily classified as “enemy combatants” when the abuse occurred. It also ignores the fact that by creating policies condoning torture and abuse, Rumsfeld invited his subordinates to “step outside the box” whenever they felt exigent circumstances warranted it. If this were, say, a D.C. School Board that had allowed certain abusive disciplinary techniques, but not others, would we say that the School Board members should avoid personal liability for creating an environment in which abuse was bound to happen?

Finally — and this is terribly pedantic, but it involves a case I’ve read quite closely in recent weeks — the court is absolutely wrong to say that United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) stands for the idea that “the Constitution’s application to interrogation outside the United States is not settled.” Verdugo-Urquidez was a case about a foreign national who had been removed to the U.S. in a joint Mexico-U.S. operation, and the question was whether or not his mere presence in the United States meant that the DEA couldn’t search his home in Mexico without a warrant from a U.S. court. The case has nothing at all to say about the Constitution’s applicability to U.S. citizens outside the U.S. Here is the Supreme Court’s take on the difference:

The available historical data show, therefore, that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government; it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory.

Verdugo-Urquidez, 494 U.S. at 266.

(h/t Paul Bibeau)

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