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Torture Creates Right to Sue, But Not in the United States

The last few weeks have brought some news about torture, and the law surrounding it.  The United Nations Convention Against Torture defines torture, bans the use of torture, prohibits member states from transferring persons to states where they would be subjected to torture, requires member states to punish torture in criminal courts and requires them to allow for the compensation of victims of torture:

Graphic of party states to the U.N. Convention Against Torture.

Nations which have ratified the United Nations Convention Against Torture in dark green, those which have signed but not ratified in light green, those which have not signed in gray.e,  bans it under any circumstances or rationalizations, requires the member states to make torture a crime, prohibits the transfer of persons to  countries where they might be tortured, and creates a right to compensation by the person who has been tortured:

Article 14

1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.

2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.

The United States signed the treaty in April, 1988, ratified it on 21, October 1994.  Common Article III of the Geneva Conventions also prohibits torture,  the United States signed the Geneva Conventions in 1949 and ratified them in 1955.

Last week the Senate Intelligence Committee approved a still classified, 6,000 page  report about the conduct of torture by the CIA.  It is not clear when, or if, this information will be available to the public.

In 2003, a German citizen, Khaled al-Masri, was pulled off a bus in Macedonia because he was confused with an Al Qaeda operative with a similar name. Al-Masri was tortured, then placed in U.S. custody and flown to Afghanistan and tortured for an additional four months.  Eventually he was released in Albania.  Al-Masri sued, and last week won a judgment of approximately $78,000 in the European Court of Human Rights in Strasbourg.

Last month, the United States Court of Appeal for the Seventh Circuit declined to create a cause of action for Donald Vance and Nathan Ertel,  and found they could not sue Secretary of Defense Donald Rumsfeld, or the people who did torture them. Vance and Ertel were contractors in Iraq for a company called Shield,  the court opinion offers this set of facts:

Vance came to suspect that Shield was supplying weapons to groups opposed to the United States. He reported his observations to the FBI. Ertel furnished some of the information that Vance relayed.
Persons who Vance and Ertel suspected of gun-running retaliated by accusing Vance and Ertel of being arms dealers themselves. Military personnel arrested them in mid-April 2006.

According to the complaint, plaintiffs were held in solitary confinement and denied access to counsel. Their
interrogators used “threats of violence and actual violence, sleep deprivation and alteration, extremes of
temperature, extremes of sound, light manipulation, 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 injurious techniques.” Vance and Ertel were provisionally classified as “security internees” and called before a Detainee Status Board, but they were not
allowed to present evidence—and the military officials running the proceedings refused to look at files on
their computers that Vance and Ertel say would have established their innocence of arms-dealing charges.
Nor did the Board contact the FBI, even though Vance and Ertel said that agents would verify their story.

The Board concluded on April 29, 2006, that Ertel should be released. Nonetheless he was held for another
18 days, during which interrogators continued to use harsh techniques. He was released on May 17, 2006.
Vance remained in solitary confinement until his release on July 20, 2006, and was subjected to sleep deprivation, prolonged exposure to cold, intolerably loud music, “hooding,” “walling” (placing a person’s heels against a wall and slamming his body backward into that wall), threats of violence, and other techniques that caused physical or mental pain. The Army Field Manual forbids several of these techniques, which it classifies as “physical torture,” “mental torture,” or “coercion.” See Army Field Manual: Intelligence Interrogation 1–8 (1992). Whether any of the techniques constitutes “torture” within the
meaning of 18 U.S.C. §2340(1), which makes torture by interrogators a crime, is a subject on which the parties’ briefs do not join issue, and which we therefore do not address.
The Detainee Status Board eventually concluded that both Vance and Ertel are innocent of the allegations
that had been made against them. Neither was charged with a crime

Vance and Ertel sued the interrogators, the Army and former Secretary of Defense Donald Rumsfeld for approving torture and overseeing its implementation.  The court decided that they had no right to sue.   The court offered this summary at the beginning of the opinion:

This appeal presents the question whether the federal judiciary should create a right of action for damages against soldiers (and others in the chain of command) who abusively interrogate or mistreat military prisoners, or fail to prevent improper detention and interrogation. Both other courts of appeals
that have resolved this question have given a negative answer. Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012); Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012); Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011). Another circuit declined to create a damages remedy against intelligence officials who turned a suspected terrorist over to another nation for interrogation. Arar v. Ashcroft, 585 F.3d 559, 571–81 (2d Cir. 2009) (en banc). We agree with those decisions.

The court’s 83 page opinion was issued en banc, meaning it was reviewed and heard by the 11  judges in the Seventh Circuit to review a decision of a three judge panel.  The majority opinion was joined by seven judges, one judge wrote separately to concur in the judgment, though not all the reasoning, and three wrote in dissent to argue against the grant of immunity and argue that the case should be allowed to proceed.  The concurrence argued the plaintiffs had a cause of action, but missed the two year statute of limitations.  It is not clear the majority shared that view.

Judge Hamilton, writing in his dissent said:

Under the majority holding here, however, the same U.S. courts are closed to U.S. citizens who are victims
of torture by U.S. military personnel. The majority thus errs by attributing to Congress an intention to deny
U.S. civilians a right that Congress has expressly extended to the rest of the world. A victim of torture by
the Syrian military, for example, can sue in a U.S. court, but a U.S. citizen tortured by the U.S. military cannot. That conclusion should be deeply troubling, to put it mildly. We should not attribute that improbable view to Congress without a far more compelling basis than the majority offers

Torture is prohibited, and a crime.  It is not clear that there have been any significant prosecutions of those who tortured or authorized torture by either the Bush or Obama administrations.  The court determined that is not a basis for creating tort liability.  It is also not clear what remedy those tortured in U.S. custody have in U.S. courts.  They may seek a recovery under the Military Claims Act, 10 U.S.C. §2733. This is an application to an administrative body which has authority to award or deny relief with a limit of $100,000 and a two year statute of limitations.  The concurrence offered the following list of options:

• Bringing a civil action in federal or state court under the federal civil rights statute, 42 U.S.C.
§ 1983, directly against state or local officials for money damages or injunctive relief;
• Seeking damages for negligence of federal officials and for negligence and intentional torts of
federal law enforcement officers under the Federal Tort Claims Act, 22 U.S.C. § 2671 et seq.,
or of other state and municipal officials under comparable state statutes;
• Suing federal officials directly for damages under provisions of the U.S. Constitution for “constitutional
torts,” see Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and Davis v. Passman,
442 U.S. 228 (1979);

The list came from  United States Written Responses to Questions Asked by the Committee on Torture.  Apparently a tortured person may obtain relief only by suing, or filing an administrative claim, within a two year statute of limitations.  The courts have seemingly foreclosed most of the remaining options.

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