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Vance v. Rumsfeld

March 5, 2010


The opinion of the court was delivered by: Wayne R. Andersen District Judge


This case is before the court on defendant Donald Rumsfeld's motion to dismiss plaintiffs' second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the motion to dismiss [135] is denied as to Count I and granted with respect to Counts II and III.


According to the complaint, plaintiffs Donald Vance ("Vance") and Nathan Ertel ("Ertel"), both American citizens, traveled to Iraq in the fall of 2005 to work for a private Iraqi security firm, Shield Group Security ("SGS"). In the course of their employment, plaintiffs allegedly observed payments made by SGS agents to certain Iraqi sheikhs. Plaintiffs also claim to have seen mass acquisitions of weapons by SGS and sales in increased quantities. Questioning the legality of these transactions, Vance claims to have contacted the FBI during a return visit to his hometown of Chicago to report what he had observed. Vance asserts that he was put in contact with Travis Carlisle, a Chicago FBI agent, who arranged for Vance to continue to report suspicious activity at the SGS compound after his return to Iraq. Vance alleges that he complied with Carlisle's request and continued to report to him daily. Several weeks later, Vance claims Carlisle put him in contact with Maya Dietz, a United States government official working in Iraq. Dietz allegedly requested that Vance copy computer documents and forward them to her. Vance contends that he complied with that request.

Plaintiff Ertel claims to have been aware of Vance's communications with the FBI and alleges to have contributed information to those communications. Ertel asserts that both he and Vance communicated their concerns about SGS to Deborah Nagel and Douglas Treadwell, two other United States government officials working in Iraq.

Plaintiffs contend suspicions within SGS grew as to Vance and Ertel's loyalty to the company. On April 14, 2006, armed SGS agents allegedly confiscated plaintiffs' access cards which permitted them freedom of movement into the "Green Zone" and United States compounds. This action effectively trapped plaintiffs in the "Red Zone" and within the SGS compound. Plaintiffs claim to have contacted Nagel and Treadwell who instructed them to barricade themselves in a room in the SGS compound until United States forces could come rescue them. Plaintiffs subsequently were successfully removed from the SGS compound by United States forces.

Plaintiffs allege that they then were taken by United States forces to the United States Embassy. Plaintiffs allege that military personnel seized all of their personal property, including their laptop computers, cellular phones, and cameras. At the Embassy, plaintiffs claim they were separated and then questioned by an FBI agent and two other persons from United States Air Force Intelligence. Plaintiffs contend that they disclosed all their knowledge of the SGS transactions and directed the officials to their laptops in which most of the information had been documented. Plaintiffs also assert that they informed the officials of their contacts with Agent Carlisle in Chicago and Agents Nagel and Treadwell in Iraq. Following these interviews, plaintiffs claim they were escorted to a trailer to sleep for two to three hours.

Next, plaintiffs claim they were awakened by several armed guards who placed them under arrest and then handcuffed and blindfolded them and pushed them into a humvee. Plaintiffs contend that they were labeled as "security internees" affiliated with SGS, some of whose members were suspected of supplying weapons to insurgents. According to plaintiffs, that information alone was sufficient, under the policies enacted by Rumsfeld and others, for the indefinite, incommunicado detention of plaintiffs without due process or access to an attorney. Plaintiffs claim to have been taken to Camp Prosperity, a United States military compound in Baghdad. There they allege they were placed in a cage, strip searched, and fingerprinted. Plaintiffs assert that they were taken to separate cells and held in solitary confinement 24 hours per day.

After approximately two days, plaintiffs claim they were shackled, blindfolded, and placed in separate humvees which took them to Camp Cropper. Again, plaintiffs allege they were strip searched and placed in solitary confinement. During this detention, plaintiffs contend that they were interrogated repeatedly by military personnel who refused to identify themselves and used physically and mentally coercive tactics during questioning. All requests for an attorney allegedly were denied.

Plaintiffs allege that on or about April 20, 2006 they each received a letter from the Detainee Status Board indicating that a proceeding would be held on April 23, 2006 to determine their legal status as "enemy combatants," "security internees," or "innocent civilians." The letters informed plaintiffs that they did not have a right to legal counsel at that proceeding. The letters also informed plaintiffs they only would be permitted to present evidence or witnesses for their defense if evidence or witnesses were reasonably available at Camp Cropper. Vance and Ertel allege that on April 22, 2006 they each received a notice stating that they were "security internees." The letters informed plaintiffs they had the right to appeal by submitting a written statement to camp officials. Both Vance and Ertel appealed, requesting each other as witnesses and their seized personal property as evidence.

Plaintiffs allege they were taken before the Detainee Status Board on April 26, 2006. Ertel and Vance claim they were not provided with the evidence they requested, nor were they permitted to testify on the other's behalf. Plaintiffs assert that they were not permitted to see the evidence against them or confront any adverse witnesses.

On May 17, 2006, Major General John Gardner authorized the release of Ertel, allegedly 18 days after the Detainee Status Board officially acknowledged that he was an innocent civilian. Vance's detention continued an additional two months, and he alleges that he continuously was interrogated throughout his detention. On July 20, 2006, allegedly several days after Major General Gardner authorized his release, Vance was permitted to leave Camp Cropper. Neither Vance nor Ertel was ever charged with any crime.

On December 18, 2006, plaintiffs initiated this lawsuit against defendants for the alleged constitutional violations that occurred in Iraq by the unidentified agents of the United States as well as for the practices and policies enacted by Rumsfeld who allegedly authorized such actions by those agents. Rumsfeld has filed a motion to dismiss the claims against him.


Rule 8 of the Federal Rules of Civil Procedure has long required that a plaintiff need only provide a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a). At the motion to dismiss stage, the court must accept the material facts contained in a plaintiff's complaint as true and generally construe the complaint in a light favorable to the plaintiff. See Jackson v. E.J. Branch Corp., 176 F.3d 971, 978 (7th Cir. 1999). In two recent decisions, however, Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), the United Supreme Court made clear that Federal Rule 8 is not a license for wild conspiracies or baseless speculation.

In Twombly, the Supreme Court held that pleading a sufficient antitrust violation requires more than a mere allegation of parallel conduct. 550 U.S. at 556. Instead, a plaintiff must provide "enough facts to state a claim to relief that is plausible on its face." Id. at 570. The Seventh Circuit recently recognized that the lesson of Twombly is that "a defendant should not be forced to undergo costly discovery unless the complaint contains enough detail, factual or argumentative, to indicate that the plaintiff has a substantial case." Limestone Dev. Corp. v. Village of Lemont, Illinois,520 F.3d 797, 802-803 (7th Cir. 2008).

In Iqbal, the Supreme Court clarified that Twombly is not limited only to the antitrust context and set forth the general burden plaintiffs face on a motion to dismiss. Iqbal, 129 S.Ct. at 1953. In Iqbal, the plaintiff Javaid Iqbal was arrested as part of a mass roundup of Muslim non-citizens in the period following September 11, 2001. Id. at 1951. He alleged that a policy of selectively detaining individuals based on race and religion improperly led to his arrest. Id. Iqbal named former Attorney General John Ashcroft and current Director of the Federal Bureau of Investigation Robert Mueller as defendants, arguing that each was an architect of the policy that permitted his detention. Id. Because these officials were named in the lawsuit, the Supreme Court was particularly concerned with ensuring that baseless or purely speculative allegations were properly dismissed. Id. at 1954. The Supreme Court recognized that it was "impelled to give real content to the concept of qualified immunity for high-level officials who must be neither deterred nor detracted from the vigorous performance of their duties." Id.

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.


I. Count I: Cruel and Inhumane Treatment Methods

In Count I,plaintiffs allege that they were subject to a number of cruel and degrading treatment methods during their respective periods of detention. Plaintiffs allege that the treatment methods included "threats of violence and actual violence, sleep deprivation and alteration, extremes of temperature, extremes of sound, light manipulation, threats of indefinite detention, denial of food, denial of water, denial of needed medical care, yelling, prolonged, solitary confinement, incommunicado detention, falsified allegations and other psychologically-disruptive and injurious techniques." SAC ¶ 259. We must determine whether it is plausible that Rumsfeld was personally involved in the decision to implement the class of harsh treatment methods that allegedly were utilized against plaintiffs Vance and Ertel.

A. Rumsfeld's Personal Involvement in Alleged Cruel Treatment

Plaintiffs bring their claim against Rumsfeld as a Bivens action. The United States Supreme Court in Bivens v. Six Unknown Namaed Agents of Federal Bureau of Narcotics established that victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of a statute conferring such a right. 403 U.S. 388, 396 (1999). In Bivens, the Supreme Court held that it is "well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." Id. (citing Bell v. Hood, 327 U.S. 678, 684 (1946)). From its inception, Bivens has been based on "the deterrence of individual officers who commit unconstitutional acts." Correctional Services Corp. v. Malesko, 534 U.S. 61, 71 (2001). Another purpose of extending a Bivens remedy to a person who has been subjected to the deprivation of constitutionally-guaranteed rights by an individual officer is to "provide a cause of action for a plaintiffs who lack any alternative remedy for harms caused by an individual officer's unconstitutional conduct." Id. at 70.

Consistent with its purpose to "deter individual officers from committing constitutional violations," liability under Bivens is limited to those "directly responsible" for such violations. Malesko, 534 U.S. at 69-71. This requires a plaintiff to sufficiently allege that a defendant was "personally involved in the deprivation of [his] constitutional rights." Gossmeyer v. McDonald, 128 F.3d 481, 494 (7th Cir. 1997). We will later evaluate Rumsfeld's claim that this court should not imply a Bivens remedy even if a constitutional violation is found to exist. First, however, we address the threshold question of whether Rumsfeld's personal involvement has been sufficiently alleged. Because of the factually intensive nature of plaintiffs' allegations of Rumsfeld's personal involvement, our evaluation of this issue is filtered through the lens of Iqbal to ensure that the facts alleged go beyond bare assertions or mere speculation.

According to plaintiffs' allegations in their second amended complaint, Rumsfeld was personally involved in their unconstitutional treatment by his decision to approve the adoption of harsh treatment methods that were utilized at Camp Cropper during plaintiffs' confinement. While plaintiffs acknowledge that Rumsfeld did not personally subject them to the harsh interrogation and confinement methods, plaintiffs rely on a number of Seventh Circuit cases to establish the proposition that individuals who issue an order to engage in unconstitutional conduct can themselves be held liable for that conduct. In other words, a superior officer may be considered personally involved in a constitutional violation when his subordinates carried out such a violation pursuant to his policy directive. See e.g., Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 614-615 (7th Cir. 2002) ("Ms. Doyle and Mr. Konold allege that the DCFS Director and his deputy personally were responsible for creating the policies, practices, and customs that caused the constitutional deprivations.... [T]hese allegations... suffice at this stage in the litigation to demonstrate... personal involvement in the purported unconstitutional conduct."); see also Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995).

Rumsfeld cites seemingly contrary language from the Sixth Circuit that appears quite favorable to his position. See Nuclear Transp. & Storage, Inc v. United States, 890 F.2d 1348, 1355 (6th Cir. 1989) (holding that an individual capacity claim against a cabinet officer cannot proceed simply based upon allegations that a cabinet officer "acted to implement, approve, carry out, and otherwise facilitate alleged unlawful policies"). Upon further review, however, it appears that the Sixth Circuit's objection was to the quality of the pleading-which the Court of Appeals characterized as a "mere assertion"-rather than to the principle of policymaker liability generally. Id. Thus, plaintiffs' complaint against Rumsfeld at this stage can proceed only if it properly alleges that Rumsfeld created a policy that expressly authorized those under his command to carry out a constitutional violation. See Ryan v. Mary Immaculate Queen Ctr., 188 F.3d 857, 859 (7th Cir. 1999).

In their second amended complaint, plaintiffs lay out a number of factual allegations in support of their claim that Rumsfeld personally crafted the policies responsible for their harsh treatment in Iraq. While the secretive, classified nature of many of the alleged policy decisions in this area makes precise identification of events more difficult, plaintiffs have identified a number of key dates and facts in support of their allegations. The following factual allegations are laid out in plaintiffs' second amended complaint.

First, plaintiffs allege that on December 2, 2002 "Rumsfeld personally approved a list of torturous interrogation techniques for use on detainees on Guantanamo." Second Amended Complaint ("SAC") ¶ 232. In defiance of established military rules and standards, plaintiffs allege that Rumsfeld added a number of methods to the Army Field manual including, use of 20-hour interrogations, isolation for up to 30 days, and sensory deprivation. Id.

Plaintiffs allege that on January 15, 2003 Rumsfeld rescinded his formal authorization for those techniques. SAC ¶ 233. Plaintiffs allege that he instead authorized the Commander of the United States Southern Command to use these methods "if warranted and approved by Rumsfeld himself in individual cases." Id.

Around the same time, plaintiffs also allege that Rumsfeld convened a "Working Group" to evaluate the status of interrogation policy. SAC ¶ 234. Plaintiffs allege that in April 2003 Rumsfeld approved a new set of interrogation techniques, which included isolation for up to thirty days, dietary manipulation, and sleep deprivation and again provided that additional harsh techniques could be used with his approval. SAC ¶¶ 234-235.

Plaintiffs further allege that in August 2003 Rumsfeld sent Major Geoffrey Miller to Iraq to review the United States prison system. SAC ¶ 236. Plaintiffs claim that Rumsfeld informed Major Miller that his mission was to "gitmo-ize" Camp Cropper, a task that required recommendations on how to more effectively obtain actionable intelligence from detainees and "authorized Major Miller to apply in Iraq the techniques that Rumsfeld had approved for use at Guantanamo and elsewhere. At Rumsfeld's direction, Major Miller did just that." Id. at ¶¶ 236-237.

Plaintiffs allege that on September 14, 2003, in response to Major Miller's call for more aggressive interrogation policies in Iraq and as authorized by Rumsfeld, Lieutenant General Ricardo Sanchez, Commander of the Coalition Joint Task Force, "signed a memorandum authorizing the use of 29 interrogation techniques which included yelling, loud music, light control, and sensory deprivation, amongst others." SAC ¶ 238.

Finally, plaintiffs allege that Rumsfeld, on the same day that Congress passed the Detainee Treatment Act, modified the Army Field Manual to include ten new interrogation techniques, including those allegedly used against plaintiffs. SAC ΒΆ 244. While plaintiffs acknowledge that these modifications to the Field Manual were subsequently ...

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