By Basil Katz
NEW YORK (Reuters) - When U.S. soldiers burst into a room where two American employees of an Iraqi security company were hiding in April 2006, the barricaded men thought they had been rescued.
Instead, Donald Vance and Nathan Ertel were taken in for questioning and detained for months by the U.S. military without being charged or given access to a lawyer, the men say in court documents.
Since the September 11 attacks, U.S. courts have dismissed all torture and other abuse lawsuits filed by non-citizens on immunity or secrecy grounds.
Now, five cases wending their way through federal courts across the country are seeking to address an issue perhaps more significant to most Americans: Whether U.S. citizens can claim constitutional protection from actions by government officials in the context of the war on terrorism.
The five cases raise the wider issue of accusations of torture and abuse, but they also share a legal question of whether a key 1971 Supreme Court ruling can be used to obtain monetary damages from government officials accused of abuse.
The ruling, Bivens v. Six Unknown Named Agents, permitted citizens to sue federal officials for monetary damages for violating their civil rights.
Courts allow Bivens suits fairly regularly in the United States but they almost always involve questions of local law enforcement. The Supreme Court has never considered a Bivens action involving international issues, let alone one having to do with war.
But lawyers speculate it may do so as early as next fall to clarify the scope of the ruling.
"Officials typically argue that Bivens is a very limited precedent," said Peter Margulies, a professor at Roger Williams School of Law.
"They say that any expansion of Bivens beyond that very narrow fact pattern would be unjustified, particularly given the enormous stakes in counterterrorism."
The U.S. Justice Department, which is representing some of the defendants, declined to comment on any of the litigation.
REMEDY FOR TORTURE
In the Vance case, the 7th U.S. Circuit Court of Appeals in Chicago said Bivens was an appropriate course of action and allowed the lawsuit to go forward.
Vance, 33, of Illinois, and Ertel, 35, of Virginia, worked as contractors for Shield Group Security, an Iraqi-owned security services company, in 2005 and 2006.
Vance became convinced the company, which operated in areas of Baghdad, was bribing local Iraqis. He became a whistleblower and FBI informant, dealing with agents based in Chicago and in Iraq, he said in his lawsuit. Vance's friend Ertel also began sending the FBI tips.
In April 2006, Shield Group officials grew suspicious and revoked the mens' credentials, effectively trapping them within the firm's grounds, according to Vance and Ertel. The men's FBI contacts advised them to arm and barricade themselves in a room and await help from U.S. soldiers.
Instead of being liberated, Vance was detained for three months and Ertel for six-weeks at a military prison near Baghdad. The men said their U.S. military captors accused them of aiding insurgents. After being freed, Vance and Ertel filed suit in Chicago federal court against former U.S. Secretary of Defense Donald Rumsfeld and others under Bivens.
In an August opinion, a federal appeals court allowed the case to go forward.
Rumsfeld's personal lawyer, David Rivkin, who has been involved in the Vance case, said the fact the Bivens issue had progressed this far was due to a string of outlier rulings.
"These were a series of unfortunate decisions utterly at odds with the existing Supreme Court case law," Rivkin said. "They are utterly certain to be overturned."
Rivkin added that by allowing this case to go forward, the appeals court was setting a dangerous precedent.
"We are talking about things that took place in the theater of war. Insurgency at its peak. Vance and Ertel were credibly believed to be running guns to insurgents," Rivkin said.
There are four other torture and abuse cases in various stages of the appeals process which are similarly seeking to obtain damages through Bivens.
Two of the cases were before the District of Columbia. One was filed in 2008 by an unnamed civilian contractor for the U.S. military in Iraq, and a second was brought by a New Jersey Muslim in 2009, who accused the FBI of orchestrating his unlawful detention in Africa.
Jose Padilla, a U.S. citizen detained as an enemy combatant from 2002 to 2006 has filed two Bivens suits. The first will be heard by a federal appeals court in Virginia in October; the second, brought against former Justice Department official John Yoo, is pending before the 9th U.S. Circuit Court of Appeals in San Francisco.
The flurry of cases has sparked a debate over how Bivens issues should be handled. In his dissenting opinion in the Vance case, Judge Daniel Manion called on Congress to step in.
But American University law professor Stephen Vladeck said there was a danger in sidestepping Bivens in these cases.
"The narrower Bivens is, the more flexibility, and I dare say impunity, all executive branch officers will have, no matter their politics or political aspirations."
"I do think these cases are the strongest cases yet that we've seen where, if the facts as alleged are true, it would be really eye-opening if the American judicial system provided no relief," Vladeck added.
(Reporting by Basil Katz; Editing by Eileen Daspin and Jerry Norton)