Vance v. Rumsfeld Clears Another Hurdle in Torture Suit

I am impressed that the Vance suit is successfully challenging the hurdles, and as noted near the end of the article below,

"This makes two cases in two weeks--one district court, one circuit court--allowing very similar torture suits to move forward against Rumsfeld. We'll watch for appeals."

And we will be watching for interpretation and explanations of them from the Constitutional Law Professor Blog!   For those coming late to this topic, we began covering it earlier on Penigma, here.

From the Constitutional Law Professor Blog (there's some good reading here!):

August 9, 2011
Seventh Circuit Allows Torture Suit Against Rumsfeld to Move Forward

A divided three-judge panel of the Seventh Circuit ruled on Monday in Vance v. Rumsfeld that a Bivens suit by two Americans alleging that former Secretary of Defense Donald Rumsfeld authorized their torture can move forward.

In short, the court ruled that the plaintiffs sufficiently pleaded their allegations that Secretary Rumsfeld authorized treatment that violated the Fifth Amendment's Due Process Clause (substantive due process)--and that he reasonably should have known it. The court thus ruled that the plaintiffs pleaded facts sufficient to satisfy the pleading standard in Ashcroft v. Iqbal and that Rumsfeld did not qualify for immunity. The court also ruled that there was no reasonable alternative way for the plaintiffs to bring their claims and that there were no special factors counselling against a Bivens remedy. In particular, the court rejected the defendants' separation-of-powers arguments--like those in Doe--that courts don't have any business in cases dealing with national security and foreign affairs, especially in times of war.

If the case sounds familiar, that's because it is: Just last week, Judge Gwin (D.D.C.) ruled in Doe v. Rumsfeld that a nearly identical suit can move forward. (The plaintiffs in the suits alleged similar torture at the same site, Camp Cropper, the U.S. military prison in Iraq.) The key difference between these cases and the D.C. Circuit's rejection of a torture claim against Rumsfeld in June: The plaintiffs here are U.S. citizens; the plaintiffs in the D.C. Circuit case, Arkan v. Rumsfeld, were aliens. (The D.C. Circuit ruled that it wasn't clearly established in 2004, the time of the actions there, that the Fifth and Eighth Amendments applied to aliens detained abroad; Rumsfeld thus had qualified immunity.)

Judge Hamilton's opinion in Vance, joined by Judge Evans, tracked Judge Gwin's reasoning, but with over 80 pages of detail. The meaty opinion seems carefully tailored to withstand any appeal.

I would encourage any Penigma reader who finds this issue of interest to continue reading here.  You don't need to be a law professor, lawyer, or law student to understand it; it is very well written, and very interesting.
For those of us who are not lawyers or conversant in legalese, here is the definition of a Bivens suit, referenced above, from the web site U.S.Legal.com definitions :

Bivens action refers to a lawsuit which is brought to redress a federal official's violation of a constitutional right. Bivens action allows federal officials to be sued in a specific manner, similar to one prescribed at 42 USCS § 1983 for state officials violating a person's constitutional rights under color of state law.

I'm glad I found this site; I had gotten out of the habit of reading as much in these areas, with bat-shit crazy Orly Taitz having pretty much run out of steam....or options.

Rumsfeld & the Right Are Wrong: Factcheck.org Fact Checks Revisionist History by Former Sec.Defense Rumsfeld,

Rummy continues his efforts to diminish the effectiveness and improvements of the Obama administration, while apparently trying to re-write the history of the Bush administration to improve a deplorable presidential legacy, of which he was a part.  Seems kind of self-serving to me, and typical of the Right's refusal to give Obama credit in world affairs where credit is due.  This provides an interesting context to evaluating Obama's handling of the upheavals in the middle east, and conservatives efforts to try to sabotage a second Obmama term.

Rumsfeld on the World’s View of America

February 21, 2011
Donald Rumsfeld wrongly denied that the U.S. is viewed more favorably under President Barack Obama than it was under President George W. Bush. In fact, residents of several nations including Britain, Germany, France and China view the U.S. more favorably, according to a survey released last year by the Pew Research Center’s Global Attitudes Project.

Rumsfeld, who served as Defense Secretary under Bush, told CNN’s Candy Crowley that he didn’t think there was any evidence to support claims that residents of other nations have a more favorable opinion of America than they used to:

Crowley, Feb. 20: The president’s supporters say that in two years he has been able to return this country to a status of being liked across the world in a way that America was not liked during the Bush administration, that he has once again made America a beacon. Do you agree with that? Do you think that the U.S. is now looked at much differently than it was, and much more positively than it was during your tenure?

Rumsfeld: No, and I don’t think there’s data that supports that. I think he has made a practice of trying to apologize for America. I personally am proud of America.

Crowley: Well, he seems to be quite popular overseas in a way that President Bush was not. The streets aren’t full of people burning him in effigy. There does seem to be a new — a chance to look at America in a different way than it did during the Bush administration. You don’t think that’s true.

Rumsfeld: I don’t think that’s true, and I don’t think that there’s data that would support that.

But there is support for such claims. Pew reported in June 2010 that President Obama was pretty popular around the world. "In turn, opinions of the U.S., which improved markedly in 2009 in response to Obama’s new presidency, also have remained far more positive than they were for much of George W. Bush’s tenure," the report said.

In fact, in 16 out of 19 nations (not including the United States), those surveyed had a more favorable view of America in 2010 than they did in the last year of Bush’s presidency. Here is the Pew Research Center’s chart: