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
"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
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).
Despite getting a rare Writ of Mandamus from the D.C. Circuit Court of Appeals establishing that its internal investigations were covered by the attorney-client privilege, Kellogg Brown & Root must still turn them over.