Image via WikipediaVia the Government Accountability Project:
(Washington, D.C.) -- Yesterday, a federal court in Washington, DC upheld the validity of a constitutional rights claim against former Secretary of Defense Donald Rumsfeld for his role in the torturing and illegal imprisonment of a U.S. citizen who was working as a translator in Iraq.
The decision was released publicly this morning by the United States District Court for the District of Columbia. The case, John Doe v. Donald Rumsfeld, et al, (No. 08-cv-1902 CKK), is available here.
Out of many suits brought against Rumsfeld over the torture of detainees in Iraq, this is only the second case that has been allowed to proceed. The Government Accountability Project (GAP) is co-counsel in this suit, along with the Chicago-based civil rights law firm Loevy & Loevy (The other case that is proceeding is Donald Vance and Nathan Ertel v. Donald Rumsfeld, et al (06 C 6964), which is also being handled by Loevy & Loevy).
GAP notes that in John Doe v. Rumsfeld, the plaintiff was granted anonymity by the court due to fears that his relatives could be subject to retaliation. Read more here.
I supposed granting anonymity to protect his loved ones is the least you can do to somebody thrown in jail without due process and never charged with any crime? U.S. District Court Judge James Gwin writes:
Rumsfeld says that courts should refrain from “judicial reexamination of wartime judgments allegedly made” during a “foreign military engagement that Congress authorized the President to prosecute.”
Avoiding the “risk of assuming a role that is almost always best suited for Congress,” [Doc. 11 at 17], however, does not recommend that courts be entirely powerless to review legislative or executive action during a time of war. Rather, “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”
Doe’s complaint does not ask this Court to assume the authority to make or manage war, or to allow foreign citizens access to courts to obstruct foreign policy. Nor does it require this Court to intrude upon the political branches’ authority over military service. Instead, the complaint alleges “constitutional trespass on a detained individual citizen’s liberties where the detention was not a necessary removal from the battlefield,” Padilla, 633 F. Supp. 2d at 1028, and calls upon judicial expertise in safeguarding the citizen’s individual liberties and enforcing already-established procedural rights. See Hamdi, 542 U.S. 507
The Court thus finds, under the circumstances alleged, that a reasonable federal official would have understood conscience-shocking physical and psychological mistreatment—including temperature, sleep, food, and light manipulation—of a United States citizen detainee to violate the detainee’s constitutional right to substantive due process. Accordingly, Rumsfeld is not entitled to qualified immunity from Doe’s substantive due process claim.
Excerpt from John Doe v. Rumsfeld:
For the purposes of the pending motions to dismiss, the Court accepts as true the following factual allegations made in Plaintiff John Doe’s complaint:Read in full here.
In December 2004, Doe, an American citizen and United States Army veteran, traveled to Iraq as a civilian employee of an American-owned defense contracting firm. Doe went to work as an Arabic translator and was detailed to a United States Marine Corps Human Exploitation Team operating in the United States military bases along the Iraq-Syria border. The Human Exploitation Team, a Marine Corps intelligence unit, gathered and developed military intelligence through local Iraqi contacts. [Doc. 4 at 12.] Doe’s assigned team comprised Doe, two sergeants, and one lieutenant. The Team operated in Iraq’s Anbar Province, a highly volatile region along the western border of Iraq. [Id].
During his tenure in Iraq, Doe worked with the Human Exploitation Team to establish contact with Iraqi Sheikh Abd Al-Sattar Abu Risha. [Doc. 4 at 2.] Doe maintains that, as the Human Exploitation Team’s translator and as the first American to open direct talks with Al-Sattar, he served as the main point of contact for all communications between the Sheikh and the Team. Doe also contends that through a series of highly secretive meetings with Al-Sattar, the Sheikh pledged to support the United States and ultimately became “one of America’s staunchest allies” by providing the United States military with information to help control insurgencies in Anbar. [Doc. 4 at 2, 13.]
On October 20, 2005, Doe was transported to “Camp Korean Village,” a Marine Corps support base, to prepare for his scheduled November 5, 2005 departure from Iraq to the United States for annual leave. [Doc. 4 at 14.] When Doe arrived at Camp Korean Village, a Navy Criminal Investigative Service (NCIS) agent questioned him about his work with the Human Exploitation Team. In response to the NCIS agent’s questions, Doe says he provided a general description of his work with the Team.
On or about November 4, 2005, Doe was transported to Al Asad, a military airbase in Anbar and Doe’s scheduled point of departure from Iraq. Soon after his arrival at Al Asad, Doe was taken to an interrogation room where three NCIS agents and one other official questioned him for approximately four hours. [Doc. 4 at 14-15.] The agents denied Doe’s requests to have a representative from his military company or the Human Exploitation Team present during the interrogation. They also denied his requests for an attorney. Doe says he refused to answer questions, citing a concern for the confidentiality of sensitive information he had learned during his work on the Team. The agents searched and confiscated Doe’s luggage. They also handcuffed and blindfolded Doe, and, he says, kicked him repeatedly in the back. One agent threatened to shoot Doe if he tried to escape. [Doc. 4 at 15.]
Doe was then transported to the airport at Al Asad, where he was helicoptered to a point approximately thirty minutes away and deposited into the custody of the United States Marine Corps.
The Marines strip-searched Doe and placed him in complete isolation in a small cell. After seventy-two hours of solitary confinement, Doe says he was flown, blindfolded and hooded, to Camp Cropper, a United States military facility near Baghdad International Airport dedicated to holding “high-value” detainees. [Doc. 4 at 16.]
Government officials detained Doe in a military jail at Camp Cropper for more than nine months. During the first three months of his detention, Doe was held incommunicado in solitary confinement. On infrequent occasions, Doe was briefly allowed outdoors for short periods after midnight.
When prison officials took Doe out of isolation, they moved him into a cell housing suspected Al Qaeda and Arab Socialist Ba’ath Party members hostile to the United States. Prior to moving Doe, the officials publicized Doe’s affiliation with the Department of Defense and his work for the Human Exploitation Team, thereby encouraging the Al Qaeda and Ba’ath Party detainees to physically attack Doe. Later, prison guards moved Doe into a cell with seven suspected Al Qaeda members, encouraging additional attacks. Doe says he lived in constant fear for his life. [Doc. 4 at 18-19.]
Doe further alleges that the Camp Cropper prison guards tortured him using “psychologically-disruptive tactics designed to induce compliance.” [Doc. 4 at 8.] Among other things, Doe says they exposed him to extreme cold and continuous artificial light, blindfolded and hooded him, woke him by banging on a door or slamming a window whenever they observed Doe trying to sleep, and blasted heavy metal or country music into his cell at what Doe calls “intolerably loud volumes.” [Doc. 4 at 8, 17.] One guard repeatedly choked Doe. [Doc. 4 at 18.]
Government officials also repeatedly interrogated Doe, though they never permitted Doe the assistance of counsel or any other representative. Doe says he consistently denied any wrongdoing and responded truthfully to the questioning but his interrogators continued to threaten him and accuse him of lying. [Doc. 4 at 19.]
During Doe’s detention at Camp Cropper, government officials held two Detainee Status Board hearings to evaluate whether Doe should keep his preliminary designation as a “security internee” or instead be designated an “innocent civilian” or an “enemy combatant.” [Doc. 4 at 19-20 .] A letter from the Detainee Status Board President informed Doe that his first status hearing would be held on or after November 30, 2005. Prior to this first hearing, the Board told Doe that he did not have the right to an attorney and could only present witnesses and evidence “reasonably available” to him at Camp Cropper. [Id.] Doe claims that the Detainee Status Board denied his requests for a Judge Advocate General’s Corps attorney or to call his Human Exploitation Team members as witnesses.
The Status Board held Doe’s first hearing on or about December 22, 2005. [Id.] During this short hearing, Doe was not permitted to view evidence against him, to hear testimony against him, or to cross-examine witnesses. After the hearing, the Board ultimately deemed Doe a threat to the Multi-National Forces in Iraq and authorized his continued detention. [Doc. 4 at 20-21.]
In July 2006 and after detaining Doe for more than an additional six months, the Detainee Status Board held a second hearing regarding Doe’s status as an enemy combatant, security internee, or civilian. The Board once again denied Doe an attorney and stopped him from presenting evidence not “reasonably available” to him at Camp Cropper. Doe was not permitted to present evidence from his military company or the Human Exploitation Team with which he had worked. This second hearing lasted much longer than the first, and Doe faced more extensive questioning about his work with Al-Sattar. In addition, Doe was questioned about his treatment at Camp Cropper and about what he might do if released from the camp. [Doc. 4 at 22.]
The next month, on or about August 10, 2006, Doe was transported, shackled and blindfolded, to Baghdad International Airport, where officials gave him a new United States passport and put him on a military flight to Jordan. [Doc. 4 at 25.] Doe ultimately returned to the United States.
Doe has never been formally charged with a crime. He claims that his personal property has not been returned to him and that he has been placed on a “blacklist” that prevents American military contracting firms from hiring him. Doe also alleges that he has been put on a terrorist “watch” list, leading United States Customs officers to interrogate him and search his belongings when he returns from international travel.
On November 3, 2008, Doe filed the instant suit, challenging the conditions of and procedures used during his confinement, his placement on various blacklists, and the failure to return his seized property. Doe brings this action against Donald Rumsfeld, former Secretary of the United States Department of Defense, in his individual capacity, alleging substantive and procedural due process violations, as well as denial of access to courts and counsel. Doe argues that Rumsfeld personally approved the use of torturous interrogation techniques on a case-by-case basis and that Rumsfeld maintained control over the release or continued detention of United States detainees. [Doc. 4 at 40.] Ultimately, Doe says, Rumsfeld authorized the policies and actions that resulted in violations of Doe’s substantive and procedural due process rights, as well as the denial of Doe’s access to courts to challenge his detention. [Doc. 4 at 36.] Doe asks this Court to hold Rumsfeld personally liable by allowing a money damages remedy under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for these alleged constitutional violations.
Doe also sues Defendants Janet Napolitano, Secretary of the United States Department of Homeland Security, Robert S. Mueller III, Director of the Federal Bureau of Investigation, Alan Bersin, Customs and Border Protection Commissioner, and John Morton, Assistant Secretary of the United States Immigration and Customs Enforcement, in their official capacities, to secure the return of the property seized upon his detention and for alleged violations of his right to travel.1/
Finally, Doe brings claims against unidentified officers or agents of the United States, alleging: (1) false arrest, (2) unlawful detention and conditions of confinement, (3) torturous and unlawful interrogation, (4) denial of the right to counsel and the right to confront adverse witnesses, (5) denial of the right to present witnesses and to have exculpatory evidence disclosed, (6) denial of access to courts and to petition, (7) blacklisting, and (8) conspiracy.2/
[T]he Court DENIES Rumsfeld’s motion to dismiss Doe’s substantive due process claim. The Court GRANTS Defendant Rumsfeld’s motion to dismiss Doe’s procedural due process and access to courts claims.
The Court further GRANTS the government’s motion to dismiss Doe’s return of seized property claim; the Court permits Doe leave to amend his complaint if he can plead, in good faith, factual allegations supporting a reasonable inference that the government’s refusal to return his property was a “final agency action.” Finally, the Court DENIES the government’s motion for a more definite statement of Doe’s right to travel claim.