The US Court of Appeals for the Seventh Circuit, sitting en banc Nov. 7, ruled that two US citizens cannot sue former defense secretary Donald Rumsfeld for alleged torture by US soldiers in Iraq. The plaintiffs, who worked for a private security firm in Iraq, were arrested in 2006 by military personnel after being suspected of dealing arms. The plaintiffs alleged they were subject to torture in military prison, including sleep deprivation, extreme temperatures, and denial of food and water. In their lawsuit, the plaintiffs argued that Rumsfeld authorized harsh interrogation methods in Iraq and that victims of torture should be able to establish a private right of action against government officials. The Seventh Circuit rejected this argument as unworkable and contrary to the government's national security interests:

[The plaintiffs] want a judicial order 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 giving the Secretary of Defense a financial stake in the conduct of interrogators 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.

Three judges dissented, arguing that the majority opinion set a dangerous precedent for future government immunity cases. The en banc decision reverses a Seventh Circuit ruling in August 2011 that allowed the lawsuit against Rumsfeld to proceed.

Several Bush administration officials have been sued in recent years for alleged torture and illegal detention. The US Court of Appeals for the District of Columbia Circuit in June 2011 upheld the dismissal of a torture suit against Rumsfeld brought by four Afghan and five Iraqi citizens alleging they were illegally detained and tortured. The US Supreme Court last year ruled (PDF) in Ashcroft v. al-Kidd that former US attorney general John Ashcroft was immune from suit by a witness detained in a terror investigation. In February 2011 the Center for Constitutional Rights and the European Center for Human Rights jointly urged the signatory states of the UN Convention Against Torture to pursue criminal charges against former president George W. Bush. Other calls to investigate the criminal culpability of Bush and officials in his administration have been consistently rejected by US officials.

Frm Jurist, Nov. 8. Used with permission.