American military gets away with torture

NY Times |

In a decision that ignored a 41-year-old precedent and American obligations under international law, a United States appeals court has ruled that American civilians who are tortured by the American military cannot recover damages from the people responsible.

The 8-to-3 ruling by the full United States Court of Appeals for the Seventh Circuit overturned an important ruling last year by a three-judge panel of the same court, which held that two Americans who say they were tortured by American military forces in Iraq could sue former Secretary of Defense Donald Rumsfeld for violating their constitutional rights. That ruling relied on a landmark 1971 ruling by the Supreme Court known as Bivens, under which government officials could be held accountable for the intentional mistreatment of American citizens, even if that conduct happened in a war zone.

Reversing that decision, the full court’s majority incorrectly joined the Fourth Circuit and the District of Columbia Circuit in rejecting damage suits against American officials based on torture claims. But its ruling was much broader and a lot worse. The court held that all military personnel are exempt from civil liability for breaching civilians’ rights. “Unless there is a right of action against soldiers and their immediate commanders,” it said, “there cannot be a right of action for damages against remote superiors such as former Secretary Rumsfeld.”

The majority talked derisively about lawsuits causing “other problems, including diverting cabinet officers’ time from management of public affairs to the defense of their bank accounts.” It is a bizarre argument for a cabinet officer who developed policies that permitted torture.

Mr. Rumsfeld and other defendants made an argument limited by place: it was in a war zone that no government or military employee could be sued for torture. The Seventh Circuit ruling has no limit. Instead, as a dissent in the case explained, “We leave citizens legally defenseless to serious abuse or worse by their own government.”

In 2006, the United Nations asked the United States how it would meet its obligations under a treaty to enforce the international law against torture. The State Department said American law provides redress, including by allowing plaintiffs to sue “federal officials directly for damages under provisions of the U.S. Constitution.”

That is no longer true in cases like this one in the Seventh Circuit. The military often prosecutes its own malefactors, but if it does not, the federal courts should be available to protect American liberty. Foreign citizens can sue foreign officials under American law. Americans can sue foreign officials. But in the Seventh Circuit, covering Illinois, Indiana and Wisconsin, Americans are the only citizens who have no remedy under American law against American officials allegedly responsible for torture.