No Constitutional Tort Suit Against Former DoD Secretary Rumsfeld

A government contractor detailed by the military in Iraq will not be able to pursue a personal lawsuit against then Secretary of Defense Donald Rumsfeld thanks to a recent appeals court decision. (Doe v. Rumsfeld, C.A.D.C. No. 11-5209 (6/15/12))

According to the facts presented to the court, Doe—a U.S. citizen–worked in Iraq for an American contractor. He was a translator before being detailed to a Marine “Human Exploitation Team” where he was assigned to develop intelligence from locals. He ended up cultivating an Iraqi Sheikh as an “ally” for the U.S. (Opinion p. 3)

Apparently suspecting Doe of being a spy for the other side, the Navy Criminal Investigative Service (NCIS) interviewed Doe. When he was preparing to depart Iraq on leave, three NCIS agents detained Doe. According to Doe, they questioned him, denied his requests to have an attorney or representative from his contract employer, took his luggage, blindfolded him, kicked him and threatened to shoot him. Then it got worse.

Doe claims he was put blindfolded and hooded him and flew him to a U.S. detention facility where he was held for nine months. When he was transferred from solitary confinement Doe claims he was put into a cell with al Qaeda and other hostile suspects who were told of Doe’s ties to the Department of Defense. He claims this led to attacks by his cellmates and mistreatment by prison guards. Doe said he was questioned many times and never allowed to have an attorney as he repeatedly requested. (pp. 3-4)

Eventually—after two hearings before the “Detainee Status Board—Doe was taken to the U.S. and released, having never been formally charged with a crime. He did however end up on watch lists that have pretty much made him unemployable and unable to travel overseas without close scrutiny by Customs. (p. 4)

Doe sued Secretary Rumsfeld personally for violating his constitutional rights guaranteed by the Fifth, Eighth and Fourteenth Amendments. He blamed Rumsfeld for the policies that led to Doe’s treatment.  The district court refused to grant Rumsfeld’s motion to dismiss, holding that Rumsfeld was not entitled to qualified immunity for “detention and interrogation practices that ‘shock the conscience…’” (p. 5)

The appeals court now reverses. Calling a constitutional tort “not something to be undertaken lightly…,” the appeals court refuses to recognize such a right of action under the circumstances of this case.  The court points out that neither the Supreme Court nor the appeals courts have allowed a Bivens constitutional tort remedy in cases involving the military, national security or intelligence. This appeals court is not about to do that now: “Litigation of Doe’s case would require testimony from top military officials as well as forces on the ground, which would detract focus, resources, and personnel from the mission in Iraq….. [A]llowing such an action would hinder our troops from acting decisively in our nation’s interest for fear of judicial review of every detention and interrogation. (pp. 10-11)

We shall see if this case ends up with the Supreme Court.

DoevRumsfeld11-5209-1378889

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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