I am impressed that the Vance suit is successfully challenging the hurdles, and as noted near the end of the article below,
"This makes two cases in two weeks--one district court, one circuit court--allowing very similar torture suits to move forward against Rumsfeld. We'll watch for appeals."And we will be watching for interpretation and explanations of them from the Constitutional Law Professor Blog! For those coming late to this topic, we began covering it earlier on Penigma, here.
From the Constitutional Law Professor Blog (there's some good reading here!):
August 9, 2011
Seventh Circuit Allows Torture Suit Against Rumsfeld to Move Forward
A divided three-judge panel of the Seventh Circuit ruled on Monday in Vance v. Rumsfeld that a Bivens suit by two Americans alleging that former Secretary of Defense Donald Rumsfeld authorized their torture can move forward.
In short, the court ruled that the plaintiffs sufficiently pleaded their allegations that Secretary Rumsfeld authorized treatment that violated the Fifth Amendment's Due Process Clause (substantive due process)--and that he reasonably should have known it. The court thus ruled that the plaintiffs pleaded facts sufficient to satisfy the pleading standard in Ashcroft v. Iqbal and that Rumsfeld did not qualify for immunity. The court also ruled that there was no reasonable alternative way for the plaintiffs to bring their claims and that there were no special factors counselling against a Bivens remedy. In particular, the court rejected the defendants' separation-of-powers arguments--like those in Doe--that courts don't have any business in cases dealing with national security and foreign affairs, especially in times of war.
If the case sounds familiar, that's because it is: Just last week, Judge Gwin (D.D.C.) ruled in Doe v. Rumsfeld that a nearly identical suit can move forward. (The plaintiffs in the suits alleged similar torture at the same site, Camp Cropper, the U.S. military prison in Iraq.) The key difference between these cases and the D.C. Circuit's rejection of a torture claim against Rumsfeld in June: The plaintiffs here are U.S. citizens; the plaintiffs in the D.C. Circuit case, Arkan v. Rumsfeld, were aliens. (The D.C. Circuit ruled that it wasn't clearly established in 2004, the time of the actions there, that the Fifth and Eighth Amendments applied to aliens detained abroad; Rumsfeld thus had qualified immunity.)I would encourage any Penigma reader who finds this issue of interest to continue reading here. You don't need to be a law professor, lawyer, or law student to understand it; it is very well written, and very interesting.
Judge Hamilton's opinion in Vance, joined by Judge Evans, tracked Judge Gwin's reasoning, but with over 80 pages of detail. The meaty opinion seems carefully tailored to withstand any appeal.
For those of us who are not lawyers or conversant in legalese, here is the definition of a Bivens suit, referenced above, from the web site U.S.Legal.com definitions :
Bivens action refers to a lawsuit which is brought to redress a federal official's violation of a constitutional right. Bivens action allows federal officials to be sued in a specific manner, similar to one prescribed at 42 USCS § 1983 for state officials violating a person's constitutional rights under color of state law.I'm glad I found this Constitutional Law Professor site; I had gotten out of the habit of reading as much in these areas, with bat-shit crazy Orly Taitz having pretty much run out of steam....or options.