GAP, POGO, SPJ Filed Amicus in Support of Citizen Whistleblowers Who Were Contractors in Iraq
(Washington, D.C.) — Earlier today, the United States Court of Appeals, Seventh Circuit, in the case Donald Vance and Nathan Ertel v. Donald Rumsfeld and The United States of America, ruled that two American citizens (both contractors who were wrongfully detained and subjected to “enhanced interrogation techniques” by American military officers) can continue with their lawsuit holding former Secretary of Defense Donald Rumsfeld personally responsible for their alleged torture.
The Court agreed with several rulings of a lower court regarding the case. Specifically, the Seventh Circuit found that Vance and Ertel “alleged in sufficient detail facts supporting Secretary Rumsfeld’s personal responsibility for the alleged torture,” “that Secretary Rumsfeld is not entitled to qualified immunity on the pleadings,” and that “a Bivens remedy is available for the alleged torture of civilian U.S. citizens by U.S. military personnel in a war zone.” (Bivens remedies allow for citizens to sue for damages for constitutional violations committed by federal agents.)
The Government Accountability Project (GAP), together with the Project on Government Oversight (POGO) and the Society of Professional Journalists (SPJ), filed an amicus curiae brief to the Seventh Circuit regarding the case, arguing that a decision against the two whistleblowers would have meant that American citizens working in war zones — contractors, journalists, aid workers, etc. — could be deprived of their basic constitutional rights while there, and that violations of such rights would have no recourse.
To read the full amicus brief, click here.
“This is a great day for believers in government accountability,” stated GAP National Security & Human Rights Director Jesselyn Radack. “This decision shows that cabinet officials are not above-the-law, when they choose to violate the constitutional rights of Americans.”
Stated GAP President Louis Clark, legal counsel for the amici: “American citizens who choose to work in war zones must enjoy the same constitutional protections as those who do not, and that is what this ruling means. Although the case is probably far from over, this ruling assures all citizens working in war zones that the federal government does not have the right to lock them up and torture them.”
For his speaking out, Vance won the prestigious Ridenhour Truth-Telling Prize in 2007, one of the highest national honors a whistleblower can receive.
Out of many suits brought against Rumsfeld over the torture of detainees in Iraq, Vance is one of only two that has been allowed to proceed. GAP is co-counsel in the other suit, John Doe v. Rumsfeld, along with the Chicago-based civil rights law firm Loevy & Loevy (which represents Vance and Ertel in that case). Last week, a federal court in Washington, DC upheld the validity of a constitutional rights claim by Doe against Rumsfeld for his role in the torturing and illegal imprisonment of Doe, a U.S. citizen who was working as a translator in Iraq.
Commenting on today’s decision, Mike Kanovitz of Loevy & Loevy, the lead attorney in both Vance and Doe, said, “This Court was faced with a choice between protecting the most fundamental rights of American citizens in the difficult context of a war or leaving those rights solely in the hands of politicians and the military. The Court sided with the rights of the citizens. It was not an easy choice for the Court to make, but it was the brave and right choice.”
Donald Vance and Nathan Ertel, both American citizens, were contractors for an Iraqi company in 2006 when they were wrongfully detained, without charges, and subjected to enhanced interrogation techniques by American military officers.
After observing graft and weapons dealing by local U.S. officials and others, Vance and Ertel provided evidence to the FBI, using the Internet and cell phones to report to the FBI Chicago field office. In April 2006, U.S. officials in Baghdad became aware of their whistleblowing, and the two men were detained as security internees. They were taken by U.S. military forces to Camp Cropper.
While in U.S. military custody, both men were subject to constant questioning and “enhanced interrogation techniques” that Mr. Rumsfeld had authorized to be used on detainees. Food and water were withheld from them. They were both forced to endure extreme cold without bedding or adequate clothing. They were deprived of sleep by constant lighting, blaring music, and banging on their cell bars, among other tactics.
The Detainee Status Board reviewed the U.S. officials’ detention decisions and eventually ordered that both men be released. Ertel was released approximately one month after his appearance before the Board; Vance was detained for an additional two months before he, too, was released. Both men continued to be interrogated and mistreated throughout their detentions.