Obama Appointee Writes Majority Decision Allowing Torture Suit to Proceed Against Rumsfeld

Judge David Hamilton, an Obama appointee to the 7th Circuit Court of Appeals who was filibustered by Republicans, cast the deciding vote yesterday in a decision with important implications for torture accountability. The Court ruled 2-1 that a lawsuit against former U.S. Defense Secretary Donald Rumsfeld by American citizens who claim to have been tortured could proceed. Judge Hamilton’s ruling in Vance v. Rumsfeld makes clear, President Obama’s judges are already having an impact on our country’s jurisprudence.

In the first 30 months of his presidency, Obama has seen 95 judges confirmed – far fewer than the number confirmed by Presidents Clinton and Bush at similar points in their presidencies.

Judge Hamilton filled a seat left vacant when Judge Kenneth Ripple, a Reagan appointee, retired. Prior to joining the Seventh Circuit, Judge Hamilton was a district court judge in the Southern District of Indiana. His stellar record on the bench, in addition to his commitment to ensuring equal justice for all, made him a strong appellate court nominee. Nonetheless, his nomination stalled in the Senate for over eight months, and his confirmation required the Senate’s first judicial filibuster. Hamilton won that vote by a margin of 70-29, and his confirmation by a vote of 59-39 on November 19, 2009. Senator Lugar was the only Republican to vote to confirm him.

Judge Hamilton’s ruling in Vance v. Rumsfeld is a powerful disavowal of the policy that lead to the plaintiffs in Vance being tortured: “The wrongdoing alleged here violates the most basic terms of the constitutional compact between our government and the citizens of this country. ... There can be no doubt that the deliberate infliction of such treatment on U.S. citizens, even in a war zone, is unconstitutional.”  The Department of Justice had argued that even if everything plaintiffs alleged were true, Rumsfeld was entitled to qualified immunity and could not be sued.  Luckily, Judge Hamilton rejected the Obama Administration’s position.

The plaintiffs in Vance are U.S. citizens who were in Iraq to work for Shield Group Security, an Iraqi company providing security services for infrastructure projects. According to reporting by the New York Times, one of the plaintiffs was a whistleblower who reported the company’s suspicious conduct to the FBI, but when the US military raided the company the informant and another employee were mistakenly detained, held for three months, and tortured.  They were eventually released without being charged with a crime.

Dahlia Lithwick wrote about the ruling on Slate:

This case isn't about the rights of an enemy soldier detained on a battlefield with a weapon in his hand. It's about the rights of brave whistle-blowers who were tortured by bureaucratic mistake.

If you don't believe the war on terror is migrating into your backyard, this case is confirmation. If you don't think the state-secrets doctrine will be trotted out to protect the government's abuse of innocent Americans as well as foreign prisoners, this case proves it. If you worry that "turning the page" means always finding more of the same, this case makes that plain. A country in which nobody is ever really responsible is a country in which nobody is ever truly safe.

The 7th Circuit decision comes on the heels of a district court decision last week also allowing a separate but similar torture claim against former Defense Secretary Rumsfeld to go forward. The plaintiff in that case is a civilian employee of an American defense contracting company in Iraq who alleges he was abducted by the American military in 2005, held, and tortured for nine months in a military jail without ever being charged with a crime. In allowing the claim against Rumsfeld to move forward, Judge Gwin of the U.S. District Court for the District of Columbia held that the Constitution protects Americans at home and abroad and that “the court finds no convincing reason that United States citizens in Iraq should or must lose previously-declared substantive due process protections during prolonged detention in a conflict zone abroad.”[1]

Alliance for Justice praises these decisions and continues to demand accountability for torture. These recent court decisions are a step in the right direction to ensuring that our leaders are held accountable for their actions. Learn more about accountability for torture here.