Legal Briefing: Rumsfeld Faces Suit Over 'Enhanced Interrogation' of Whistleblowers


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Corruption-Fighting Contractors Rescued and Allegedly Detained and Tortured

According to the complaint filed against former Defense Secretary Donald Rumsfeld, as summarized by Judge Anderson in his order refusing to dismiss the case, two men employed in Iraq by Shield Group Security (SGS) allege that their employer bribed Iraqi Sheiks and trafficked in weapons, activities they worried were illegal. The men allege that on a visit back home, one (with the knowledge and cooperation of the other) contacted the Federal Bureau of Investigation and became informants, giving regular reports and copying computer files as directed. SGS started questioning their loyalty and took away the identification cards that allowed them to access Baghdad's Green Zone. As a result, their lives were placed at risk; the only safe place to be was the SGS compound. When the men contacted their law enforcement handlers, they claim they were told to barricade themselves in an SGS room and await rescue by the U.S. military. They were in fact rescued and brought to the U.S. embassy, where allegedly they explained their undercover corruption- exposing work, and turned over their laptops, which corroborated what they said.

So far, so good. What happened next is when this made-for-TV patriotic movie goes off-message.

According to the complaint, after the men slept for a couple of hours, several armed guards woke, arrested, handcuffed and blindfolded them, put into a Humvee, and brought them to Camp Prosperity and ultimately Camp Cropper for detention and interrogation. The men were labeled "security internees" affiliated with SGS, a status that enabled the men to be detained indefinitely, incommunicado, without access to due process or an attorney, and interrogated with torturous techniques. This status was a direct result of policies enacted by Rumsfeld and others, and the interrogation techniques used were specifically authorized by Rumsfeld, the men allege.

What kind of interrogation did these whistleblowers endure? Well, according to the complaint: "threats of violence and actual violence, sleep deprivation and alteration, extremes of temperature, extremes of sound, manipulation of light, threats of indefinite detention, denial of food, denial of water, denial of needed medical care, yelling, prolonged solitary confinement, incommunicado detention, falsified allegations and other psychologically disruptive and injuries techniques."

Based on this alleged treatment and Rumsfeld's alleged involvement, them men sued Rumsfeld in part for depriving them of their well established Constitutional Right to be free from torture.

But many lawyers will say, regardless of the bad stuff the men suffered, Rumsfeld is entitled to qualified immunity because he was Defense Secretary at the time, a type of immunity the Supreme Court recently protected and emphasized in Ashcroft v. Iqbal. Judge Anderson got past Iqbal by assessing the plaintiffs' factual allegations about Rumsfeld's personal involvement in the decisions that resulted in the whistleblowers' detention and torture and found they overcame the immunity defense. The immunity, the judge explained, is designed to prevent speculative lawsuits from wasting officials' time; it's not a bar against bringing legitimate claims.

Some will ask, are these "enhanced interrogation techniques" really torture? The judge said maybe not individually, but cumulatively, quite possibly, especially given their intentional infliction.

If this case goes to trial, the public may get its fullest accounting yet of how and in what ways America abandoned its historic rejection of torture, one so deep that our Constitution gives citizens a well-established right to be free of it.

In Much Lighter News . . .

The best Oscar lawsuits; the Swiss to vote on giving animals lawyers; and a law school professor inadvertently promoting Internet rumors. The law professor, trying to give his students a lesson in verifying sources and not believing information just because the source appears credible, told his students that Justice Roberts intended to retire from the Supreme Court imminently. Halfway through class, he told them he'd made it up. However, by then his students had tweeted, posted and emailed the "information," setting off a firestorm on the Internet.