Puckering Mr. Cheney

Back in 2006, I wrote a post entitled A Nation of Hypocrites that focused on the case of Donald Vance and Nathan Ertel, private military contractors working in Iraq.  The two men uncovered what appeared to be illegal arms dealing by their employer, Shield Group Security, and reported it to outside authorities.

The result? Mr. Ertel and Mr. Vance, a Navy veteran and two-time voter for George W. Bush, were disappeared into a military prison without access to the outside world and without judicial review. Mr. Ertel was released after 6 weeks, but Mr. Vance was held for 97 days.  His family had no idea what had happened to him - his fiance believed he had been killed - and both men allege that they were tortured. It is only because the military deigned to release them - with implied threats that they'd better keep their mouths shut - that they are today free men.

Mr. Ertel and Mr. Vance brought suit against the military and against Bush Administration Secretary of Defense Donald Rumsfeld, focusing on three areas: cruel and inhumane treatment; violation of procedural due process; and denial of access to the courts.  Lawyers for Secretary Rumsfeld filed a motion to dismiss the suit, and on Friday, U.S. District Judge Wayne Andersen voided the second and third counts.  More importantly however, Judge Andersen also ruled that the former contractors had alleged enough specifics to warrant a hearing of evidence on the first count of cruel and inhumane treatment.

Speaking to the Blog of Legal Times, Mike Kanovitz, an attorney for Mr. Vance and Mr. Ertel, characterized the ruling as "pretty historic" and provided the following analysis:

Essentially the judge held that there is a constitutional violation for the types of brutality that are alleged in our complaint, and that someone who is even as high ranking as a Cabinet official can be held liable for that constitutional violation if he authorizes subordinates to commit that type of violence. Furthermore, the court held that even though he is a high placed official, the pleading requirements that apply to any defendant and any plaintiff are the same ones. And even though it requires a high amount of specific evidence for holding him liable, there’s enough evidence in the complaint that he did authorize this type of violence to be sufficient to force him to answer for these actions in a court of law. 

This is hopefully a sphincter-puckering moment for not only Donald Rumsfeld, but former Vice President Dick Cheney, who confessed last month - on television, no less - to authorizing cruel and inhumane treatment of prisoners in the "War on Terror".  In a post called The Straightforward Case for Prosecuting Dick Cheney as a War Criminal, I laid out almost precisely the same path of reasoning that appears in Judge Andersen's ruling:

... If Dick Cheney or anyone else admits to being a "big supporter of waterboarding" he admits to being a "big supporter of torture".  And if he is or was in a position to successfully influence or directly command others to torture and does so, he is guilty of - at a minimum - conspiracy to carry out a crime... There are no protected classes in the United States, there is no aristocracy, and there is no one to whom the law does not apply.

It will be interesting to see if the people who supported the Bush Administration's decision to torture foreign nationals will be as vocal in their backing when it comes to a case involving fellow U.S. citizens.  My bet is that they will be, employing the same "a few bad apples" defense that saw guards at Abu Ghraib prison punished and policy-makers escape all repercussion. 

In any case, there is a long way to go before either Donald Rumsfeld or Dick Cheney is called to answer publicly for their decision to make torture part of official U.S. policy.  Judge Andersen's ruling, however, is a rare, positive development in the effort to hold highly-placed officials accountable in the eyes of the law.