WHAT DONALD VANCE and Nathan Ertel describe is inexcusable, but whether they have the right to seek redress in a U.S. court is a much more difficult question.
The American contractors warned Iraq-based U.S. officials in 2006 about possible corruption at Shield Group Security, their Iraqi employer. The men also tipped off officials to Shield Group’s possible gunrunning to insurgents. The company essentially took the men hostage after it became suspicious, and it ultimately took the efforts of U.S. soldiers to rescue the men.
Rather than getting a pat on the back from U.S. officials for blowing the whistle, the men were slapped with handcuffs, detained as security internees and questioned about what they knew about Shield Group’s operations. Mr. Vance spent three months in detention and Mr. Ertel six weeks, during which, they say, they were tortured by U.S. personnel who subjected them to prolonged sleep deprivation, solitary confinement and extreme temperatures. A detainee review panel ultimately ordered the men released.
Mr. Vance and Mr. Ertel sued former defense secretary Donald H. Rumsfeld and a number of unnamed U.S. officials for allegedly violating their rights. Although government officials are typically shielded from lawsuits for actions taken in their official capacity, the Supreme Court in the 1970s ruled that they might be personally sued by an aggrieved individual who can prove the official knowingly violated well-established constitutional rights.
Law enforcement officials operating on U.S. soil have largely been the targets of these lawsuits, but last month a divided panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit gave Mr. Vance and Mr. Ertel the go-ahead to proceed against Mr. Rumsfeld and other defense personnel for allegedly authorizing their mistreatment in an overseas military facility. “United States law provides a civil damages remedy for aliens who are tortured by their own governments. It would be startling and unprecedented to conclude that the United States would not provide such a remedy to its own citizens,” the majority opinion concluded. Last week the Justice Department asked the full court to reconsider the panel’s ruling, and rightly so.
It may be startling — and it may ultimately be wrong — to bar U.S. citizens from bringing these lawsuits against military personnel. But the court overreaches by creating expansive new rights that are not supported by precedent and that would best be weighed by Congress. The Supreme Court, for example, has said that such lawsuits should not proceed where there are “special factors counseling hesitation in the absence of affirmative action by Congress.” An active war zone and national security concerns certainly qualify as such factors.
A legal brief filed by former secretaries of defense and members of the Joint Chiefs of Staff makes a compelling case that Mr. Vance and Mr. Ertel should have pressed their claims through the military justice system. If this process proves unsatisfactory, Congress should be the body to consider how best to balance national security concerns with the rights of U.S. citizens to hold accountable those responsible for reprehensible and unconstitutional acts.