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Protecting Whistleblowers since 1977

GAP Files Supreme Court Amicus as Detained, Tortured Whistleblowers take on Rumsfeld

Melissa Koven, April 02, 2013

On March 11, 2013, GAP filed an amicus brief in support of a petition for certiorari to the Supreme Court in the case of Vance v. Rumsfeld. Petitioners Donald Vance and Nathan Ertel are U.S. citizens who worked as private security contractors in Iraq. Beginning in 2005, they witnessed corruption by U.S. and Iraqi officials and, from October 2005 until April 2006, reported these abuses to the FBI. When U.S. officials learned in April 2006 that Vance and Ertel had blown the whistle, the two were arrested and held at a U.S. military prison in Iraq.

Vance was imprisoned for more than three months, and Ertel for six weeks. During that time, the U.S. military detained them incommunicado in solitary confinement and subjected to enhanced interrogation techniques (aka torture), which then-Secretary of Defense Donald Rumsfeld had approved for use against detainees. Specifically, Vance and Ertel were not permitted to sleep, kept in extremely cold cells, forced to listen to loud music, deprived of food and water, denied medical care, hooded, slammed into walls, and threatened. After their torture and detention for months at hands of our government, the military eventually released them without charge. Vance and Ertel brought a lawsuit for damages against the officials responsible for their torture.

In November 2012, the United States Court of Appeals for the Seventh Circuit dismissed the suit holding that U.S. citizens are not entitled to bring constitutional damages claims against military officials. On Feb. 5, 2013, Loevy & Loevy, a Chicago-based civil rights law firm representing Vance and Ertel, submitted a petition for certiorari to the U.S. Supreme Court. GAP submitted an amicus brief – prepared in conjunction with the Emory Law School Supreme Court Advocacy Project and signed by seven other organizations – urging the high Court to grant the petition.

The brief points out the dangers in refusing to permit individual-capacity actions. Primarily, it argues that the Seventh Circuit decision leaves U.S. citizens – working abroad or at home – with no means of redress if the government tortures them, thereby granting the military absolute immunity. Given other federal statutes in place, the Seventh Circuit’s decision also means that U.S. citizens who are tortured would have less access to judicial review than non-citizens. The brief warns that if civilians are not afforded adequate judicial protections, they may choose not to serve their country abroad as military contractors. It notes that the United States relies heavily upon contractors and cannot afford to create such a disincentive. Finally, GAP’s brief argues that overturning the Seventh’s Circuit decision will reinforce the military’s adherence to the Constitution and ensure military discipline.
 

Melissa Koven is National Security & Human Rights Counsel for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.