A judge is allowing an Army veteran who says he was imprisoned unjustly and tortured by the U.S. military in Iraq to sue former Defense Secretary Donald H. Rumsfeld personally for damages.
The veteran's identity is withheld in court filings, but he worked for an American contracting company as a translator for the Marines in the volatile Anbar province before being detained for nine months at Camp Cropper, a U.S. military facility near the Baghdad airport dedicated to holding "high-value" detainees.
The government says he was suspected of helping get classified information to the enemy and helping anti-coalition forces enter Iraq. But he was never charged with a crime and says he never broke the law.
Lawyers for the man, who is in his 50s, say he was preparing to come home to the United States on annual leave when he was abducted by the U.S. military and held without justification while his family knew nothing about his whereabouts or even whether he was still alive.
Court papers filed on his behalf say he was repeatedly abused, then suddenly released without explanation in August 2006. Two years later, he filed suit in U.S. District Court in Washington arguing that Rumsfeld personally approved torturous interrogation techniques on a case-by-case basis and controlled his detention without access to courts in violation of his constitutional rights.
Chicago attorney Mike Kanovitz, who is representing the plaintiff, says it appears the military wanted to keep his client behind bars so he couldn't tell anyone about an important contact he made with a leading sheik while helping collect intelligence in Iraq.
"The U.S. government wasn't ready for the rest of the world to know about it, so they basically put him on ice," Kanovitz said in a telephone interview. "If you've got unchecked power over the citizens, why not use it?"
The Obama administration has represented Rumsfeld through the Justice Department and argued that the former defense secretary cannot be sued personally for official conduct. The Justice Department also argued that a judge cannot review wartime decisions that are the constitutional responsibility of Congress and the president. And the department said the case could disclose sensitive information and distract from the war effort, and said the threat of liability would impede future military decisions.
But U.S. District Judge James Gwin rejected those arguments and said U.S. citizens are protected by the Constitution at home or abroad during wartime.
"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," Gwin wrote in a ruling issued Tuesday.
"The stakes in holding detainees at Camp Cropper may have been high, but one purpose of the constitutional limitations on interrogation techniques and conditions of confinement even domestically is to strike a balance between government objectives and individual rights even when the stakes are high," the judge ruled.
In many other cases brought by foreign detainees, judges have dismissed torture claims made against U.S. officials for their personal involvement in decisions over prisoner treatment. But this is the second time a federal judge has allowed U.S. citizens to sue Rumsfeld personally.
U.S. District Judge Wayne R. Andersen in Illinois last year said two other Americans who worked in Iraq as contractors and were held at Camp Cropper, Donald Vance and Nathan Ertel, can pursue claims that they were tortured using Rumsfeld-approved methods after they alleged illegal activities by their company. Rumsfeld is appealing that ruling, which Gwin cited.
The Supreme Court sets a high bar for suing high-ranking officials, requiring that they be tied directly to a violation of constitutional rights and must have clearly understood their actions crossed that line.
The case before Gwin involves a man who went to Iraq in December 2004 to work with an American-owned defense contracting firm. He was assigned as an Arabic translator for Marines gathering intelligence in Anbar. He says he was the first American to open direct talks with Abdul-Sattar Abu Risha, who became an important U.S. ally and later led a revolt of Sunni sheiks against al-Qaida before being killed by a bomb.
In November 2005, when he was to go on home leave, Navy Criminal Investigative Service agents questioned him about his work, refusing his requests for representation by his employer, the Marines or an attorney. The Justice Department says he was told he was suspected of helping provide classified information to the enemy and helping anti-coalition forces attempting to cross from Syria into Iraq.
He says he refused to answer questions because of concern about confidentiality, and the agents handcuffed and blindfolded him, kicked him in the back and threatened to shoot him if he tried to escape. He was then transferred to an unidentified location for three days before being flown to Camp Cropper.
For his first three months at Camp Cropper he says he was held incommunicado in solitary confinement with a hole in the ground for a toilet. He says he was then moved to cells holding terrorist suspects hostile to the United States who were told about his work for the military, leading to physical attacks by his cellmates that left him in constant fear for his life.
He claims guards tortured him by repeatedly choking him, exposing him to extreme cold and continuous artificial light, blindfolding and hooding him, waking him by banging on a door or slamming a window when he tried to sleep and blasting music into his cell at "intolerably loud volumes."
He says he always denied any wrongdoing and truthfully answered questions but interrogators continued to threaten him. Both sides say a detainee status board in December 2005 determined he was a threat to the multinational forces in Iraq and authorized his continued detention, but he says he was not allowed to see most of the evidence against him. Documents the government filed with the court only say he is suspected of a crime, without providing details.
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