He was going to get away with it.
It appeared that Donald Rumsfeld, the defense secretary under President George W. Bush who made besmirching the Constitution a national policy, was going to escape responsibility for the torture and abuse of prisoners that happened under his watch. President Barack Obama, to his shame, didn't want to touch it, and the courts were showing the same yellow streak. Rumsfeld was going to spend his retirement writing self-congratulatory books and picking up hypocritical honors like the "Defender of the Constitution" Award bestowed on him this year by the American Conservative Union (and presented by none other than Dick Cheney!).
But then again, maybe not.
Two cases this month, including one by a federal appellate court, have furthered the possibility that Rumseld may be found personally liable for damages to victims of torture. It's a momentous sea change from his record of legal impunity in prior torture cases. The difference is, in the two suits that have been given the green light, the victims were American citizens.
Donald Vance and Nathan Ertel were Americans who worked for Shield Group Security, a privately owned Iraqi security service in Baghdad. Their civil suit alleges that they began cooperating with U.S. officials after suspecting their employer was acting illegally. For example, they reported that their supervisor, who called himself the "Director" of the "Beer for Bullets" program, gave liquor to American soldiers in exchange for weapons, which Shield Group Security then used or sold.
After their employer became suspicious of their actions, the two men reached out to their official U.S. contacts for help. But rather than be protected as whistle-blowers, Vance and Ertel were detained and eventually taken in shackles to a U.S. military facility near Baghdad airport known as Camp Cropper where they were subjected to a range of abuses.
Held incommunicado and in solitary confinement, their small, feces-smeared cells were kept intolerably cold. The men claim the lights were on at all times, loud music was piped in and guards would wake them if they fell asleep. They were often deprived of food and water, physically threatened and abused by being slammed into walls while blindfolded.
Both were eventually released, Ertel after six weeks and Vance after three months. They were dropped off at Baghdad airport and told to make their way home. No charges were ever filed against them.
If the techniques used against these men sound eerily familiar it's because the same abusive tactics were regularly used on detainees in Guantanamo and Iraq. Rumsfeld took a personal interest in the mistreatment of prisoners, approving a series of harsh tactics either directly or implicitly. On one memo about prisoners in 2002 he memorably scrawled: "I stand for 8-10 hours a day. Why is standing limited to 4 hours?" It was micromanagement by a man who lost his moral compass.
Still, Rumsfeld looked like he was going to escape any reckoning. In June, a federal appeals court in Washington, D.C., threw out a similar suit against Rumsfeld by nine Iraqi and Afghan former detainees who were severely abused and then released from U.S. military custody without charge. The court ruled the men have no recourse under U.S. law.
But in the case of Vance and Ertel, the 7th Circuit U.S. Court of Appeals in Chicago refused to dismiss the case. Judge David Hamilton wrote for the two-judge majority that if the government's argument is accepted it "would deprive civilian U.S. citizens of a civil judicial remedy for torture or even cold-blooded murder by a federal official and soldiers, at any level, in a war zone."
Similarly, earlier this month a second civil suit against Rumsfeld was allowed to advance by a district judge in Washington, D.C. It involved an American Army veteran who worked as a civilian in Iraq for a defense contracting firm. He was allegedly held and abused at Camp Cropper for nine months then released without charge.
Cracks are starting to appear in Rumsfeld's above-the-law perch. He may actually be called to account for what he did to his fellow citizens, if not his fellow man. When that happens, it will finally be a bad day for him, and a good day for American justice.