Jordan Weissmann
The National Law Journal
March 08 , 2010


A federal judge in Illinois has refused to dismiss a lawsuit against former Secretary of Defense Donald Rumsfeld by two Americans (pdf) who claimed they were detained and interrogated in Iraq. David Vance and Nathan Ertel, who traveled to Iraq in 2005 to work for a security firm, filed suit against Rumsfeld and the U.S. government alleging that they were taken into custody and interrogated by the military because of suspicion that their company was providing arms to insurgents. They claim they were placed in cages, strip-searched and questioned using “physically and mentally coercive tactics,” before they were finally released weeks later. Rumsfeld filed a motion to dismiss. However, Judge Wayne Anderson of the U.S. District Court for the Northern District of Illinois on Friday allowed one claim against him to go forward, finding the two contractors pleaded enough details to implicate the former secretary. Their lawyer, Mike Kanovitz of Chicago’s Loevy & Loevy, called the decision “pretty historic.” Here’s Kanovitz’s rundown of the judge’s ruling: “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.” Some readers may well be wondering how Judge Anderson sidestepped Ashcroft v. Iqbal, the Supreme Court decision which was supposed to make it more difficult to sue high-ranking public officials. Here’s the judge’s commentary on that decision: “Iqbal undoubtedly requires vigilance on our part to ensure that claims which do not state a plausible claim for relief are not allowed to occupy the time of high-ranking  government officials. It is not, however, a categorical bar on claims against these officials. When a plaintiff presents well-pleaded factual allegations sufficient to raise a right to relief above a speculative level, that plaintiff is entitled to have his claim survive a motion to dismiss even if one of the defendants is a high-ranking government official.” Justice Department trial attorney James Whitman of the Civil Division declined to comment on the ruling . A DOJ spokesman, Charles Miller, said the department is current reviewing the court’s decision.

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