Vance, et al. v. Donald Rumsfeld and the United States of America, Nos. 10-1687, 10-2442 (7th Cir. Aug. 2011), alleges that Secretary of Defense Rumsfeld bears personal involvement and responsibility for alleges torture of U.S. citizens in Iraq.  The District Court denied the motion to dismiss, and the Seventh Circuit affirmed, finding that under the pleadings neither the Secretary nor the U.S. were entitled to qualified immunity.   The Court permitted direct claims to proceed (called Bivens claims).  The private international law point of this important decision is that U.S. courts are open to U.S. citizens in a way the U.S. courts have been found not to be open to non-U.S. citizens, notwithstanding the existence of federal statutes that other courts have held level the playing field in the U.S. for claims alleging torture.  But the way this Court of Appeals got there is to agree with a dissenting view that we wrote about as well some months back. 

The claims involve two plaintiffs who left their U.S. homes to move to Iraq to help rebuild the country and achieve democracy.  They worked in Iraq for Shield Group Security, a privately-owned Iraqi security services company.  The plaintiffs became concerned that Shield itself was “involved with corruption and other illegal activity”.  He informed the FBI.  After Shield became suspicious of the plaintiffs, the company confiscated their credentials.  U.S. forces thereafter came and got the plaintiffs, and the plaintiffs allege various excessive force and torture that was then used on them, including by imprisoning them for six week in the case of one of them and three months in the case of the other.

The Seventh Circuit analyzed a line of D.C. Circuit Court of Appeals precedent, which includes Akran Mohammed Ali, et al. v. Rumsfeld, et al., No. 07-5178 (D.C.Cir. June 2011) (consol), which we discussed here.  In that case the dissent stated:

“it is ironic that, under the majority’s approach, United States officials who torture a foreign national in a foreign country are not subject to suit in an action brought under section 1350, whereas foreign officials who commit official torture in a foreign country may be sued under section 1350″.

Here the Seventh Circuit finds that there is a “fundamentally different situation posed by the claims of civilian U.S. citizens in this case”.  Continued the Court of Appeals:

Where Congress has authorized such claims by noncitizen victims of torture by foreign governments, it Nos. 10-1687 & 10-2442 71 would be startling if United States law did not provide a judicial remedy for U.S. citizens alleging torture by their own government. It would be difficult to reconcile the law of nations’ prohibition against torture and the remedies United States law provides to aliens tortured by their governments with a decision not to provide these itizen plaintiffs a civil remedy if they can prove their allegations. The defendants have not attempted to do so. As the Second Circuit held in Filartiga v. Pena-Irala, “deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties.” 630 F.2d 876, 878 (1980) (holding that alien victims of torture in Paraguay could sue responsible Paraguayan official in U.S. district court under Alien Tort Statute for damages for violation of law of nations); see also Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (describing the history of the Alien Tort Statute and holding that district courts may recognize private causes of action for some violations of the law of nations).