By: Lauren Peck, Super Lawyers Magazine: 2013
Donald Vance thought he was doing the right thing. A U.S. citizen working in Iraq, Vance and a fellow contractor say they alerted U.S. officials to suspected illegal activity by their employer, an Iraqi security company, including alleged payments to Iraqi sheiks and involvement in illegal arms-trading. Far from being praised, the two whistleblowers found themselves held incommunicado in 2006 at a U.S. military prison in Iraq, where they say they were tortured as though they were enemy combatants. Neither was charged with a crime.
The other contractor, Nathan Ertel, was detained for six weeks; Vance for three months. Civil rights attorney Michael Kanovitz and his firm, Loevy & Loevy, represented the men in a lawsuit against then-Secretary of Defense Donald Rumsfeld, accusing him of personally authorizing policies that allowed the alleged torture, which the pair say included food and sleep deprivation, isolation and music blasting at intolerable levels.
Suing a high-level government official in a case involving a war zone is no easy feat. “It’s sort of like doing the civil rights work that you normally do, except now you’ve got to do it on the moon instead of in your regular old courtroom,” Kanovitz says. “While courts are very comfortable and very familiar with enforcing the Constitution when it comes to a municipality or an individual police officer, they start to become unsure of their role when you’re talking about a Cabinet-level official and a collateral branch of government.”
But the challenge reminds Kanovitz of why he opted for plaintiff’s law.
“[It] allowed me to bet on myself,” he says. “If I believed in what I was doing and I thought I was right, I could invest the time that I needed to win, regardless of what kind of resources the other side was bringing to bear.”
Kanovitz added another case, Doe v. Rumsfeld — working with the Government Accountability Project to represent a government contractor who was detained as he was about to go home. Doe was held for nine months and says he, too, was tortured. Kanovitz believes the government was concerned that Doe might expose an alliance between the U.S. government and a sheik. “The U.S. was not willing to risk his exposing the relationship, which he had no intention of doing,” Kanovitz says. “After nine months, the U.S. was ready to publicize its ties to the sheik, and Doe was released.”
The two cases have the potential to be precedent-setting, since no civil suit accusing a secretary of defense of allowing torture has made it to trial.
“Until the government started doing this sort of thing, there was no lawyer who specialized in these kinds of rights,” Kanovitz says. Litigating against police departments, which Loevy & Loevy does, was the nearest parallel.
Kanovitz had a big civil rights cases against the Chicago Police Department, starting in 2003. His firm initially represented Joseph Lopez, an 18-year-old shooting suspect who said police held him in an interrogation room without food and with little more than a metal bench and a ring on the wall, to which he was handcuffed. Toward the end of a five-day period, Kanovitz says, Lopez confessed and was told he’d receive the death penalty’ then the real perpetrator came forward.
“[The police] all said, ‘We didn’t do anything wrong. This is just how it works,”‘ Kanovitz says. “Our response to that was: ‘That doesn’t mean you didn’t do anything wrong. It means you wronged a lot of people.”‘
The case grew into a class action suit, which settled for $16.5 million. The city also passed an order preventing police from holding anyone longer than 48 hours without charges and without a judge’s approval.
“I always have sort of chafed against what I perceive as hypocrisy,” he says. “And out of all the careers out there, it was the one career where you could stand up to it and show it for what it is.”
Kanovitz enjoys representing whistleblowers. “People … could just as easily go with the flow, do perfectly well for themselves, just play a part in a system,” he says. “Whistleblowers step outside of it. They try to change the system.”
The Rumsfeld cases, though not over, have faced some tough judicial scrutiny.
In Doe v. Rumsfeld, the trial court approved Doe’s case to go forward against Rumsfeld; however, last June, the D.C. appellate court dismissed the torture claim. The court said Congress didn’t allow detainees to sue government officials for their treatment and that litigating the case “would detract focus, resources and personnel from the mission in Iraq,” according to court documents.
Kanovitz is not ready to give up. His team is back at district court, appealing issues not considered by the appellate court.
As for Vance v. Rumsfeld, the entire 7th U.S. Circuit Court of Appeals reheard the case in Chicago in February 2012, and in November ruled against Vance. Kanovitz is appealing to the U.S. Supreme Cpurt. “We think we’ve got a very good shot,” he says, “not just because of the issues that are in the case, but also because other circuits have said a citizen can sue a member of the military …. Where the line is drawn in terms of a citizen’s ability to sue a member of the military is an issue that’s in play, but the 7th Circuit is the first one to say that there is no line: that a citizen just can’t do that.”