THE ALLEGATIONS are sadly familiar by now: The men were picked up by U.S. military forces, locked in tiny cells, deprived of sleep, and subjected to extreme temperatures and loud music.
What makes these allegations extraordinary is that the men in question, Donald Vance and Nathan Ertel, are U.S. citizens who were working in 2006 for an Iraqi security firm, Shield Group Security. According to court documents, Mr. Vance warned Iraqi-based U.S. officials about possible corruption at the firm, including the funneling of weapons to insurgents. After getting the brushoff, Mr. Vance contacted Chicago agents with the FBI on his next visit home. Mr. Vance and Mr. Ertel began passing information to the FBI once they were back in Iraq. That ended when the firm became suspicious and took the men hostage; Mr. Vance and Mr. Ertel were able to call their FBI contacts, who then alerted the military, which sent soldiers to rescue the men.
After a night at the U.S. Embassy, Mr. Vance and Mr. Ertel were told they would be detained as security internees. Mr. Vance was held for three months and Mr. Ertel for six weeks, during which they were interrogated repeatedly about what they knew about Shield Group’s operations. A detainee review board ultimately ordered them released.
The men filed suit in federal court against former defense secretary Donald Rumsfeld and a slew of unnamed U.S. officials for violating their constitutional rights; if they prevail, they could collect money damages from the defendants.
Government officials are typically immune from personal lawsuits for actions they take in their official capacity. But the Supreme Court ruled in the 1970s that the immunity can be pierced if the officials knowingly violate well-established constitutional rights. Such lawsuits typically involve wayward law enforcement officers working on domestic soil; this appears to be the first to allow such a suit against civil and military officials in the midst of conducting a war. An Illinois federal judge has allowed the suit to proceed. That decision is now on appeal.
Personal lawsuits against individual government officials should proceed only if there is plausible evidence that the named officials directly participated in the constitutional violation — a standard that Mr. Vance and Mr. Ertel’s case does not meet with regard to Mr. Rumsfeld. The case should be limited to those individuals who directly caused the alleged harm; Mr. Rumsfeld and higher-ranking officials could be added to the suit later if evidence shows they were directly involved. A friend-of-the-court brief filed this month by former secretaries of defense and members of the Joint Chiefs of Staff makes a compelling argument that the men should have availed themselves of processes within the military justice system to ferret out and punish miscreants. The appeals court should consider whether this possibility still exists.
Judges should not be in the business of second-guessing or micromanaging the executive’s battlefield decisions. But the assertions made by Mr. Vance and Mr. Ertel about their treatment in Iraq must be probed and, if true, those responsible for cruel or inhumane acts should be held accountable. The courts may not be the most appropriate place to start, but they should be available if and when other avenues fail.