The government has moved the Seventh Circuit Court of Appeals to rehear en banc the Vance case, which last month allowed a suit to proceed against former Defense Secretary Donald Rumsfeld by U.S. citizens who claim they were illegally detained and tortured in Iraq--and with some high-power amicus support. The rehearing petition summarizes the case as follows:
This case involves an exceptionally important question of whether a court, in the absence of legislative authority, may recognize a damage action against individual government officials regarding the detention and interrogation of military detainees in a foreign war zone. The Supreme Court and the other courts of appeals have “consistently refused to extend Bivens liability to any new context or new category of defendants.” Correctional Services Corp. v. Malesko, 534 U.S. 61, 68 (2001). A divided panel of this Court rejected that approach, instead presuming the existence of a Bivens remedy. The panel majority held that, notwithstanding the novel and highly sensitive military context and the fact that Congress has not elected to provide a damage action to former military detainees to sue U.S. military officials, such a damage action should be furnished to former military detainees regarding the conditions of their military detention in a foreign war zone. That unprecedented ruling is not only contrary the approach mandated by the Supreme Court and followed by the other circuits, but also is in direct tension with the D.C. Circuit’s rejection of similar damage actions brought by military detainees formerly held in Iraq, Afghanistan, and Guantánamo. The D.C. Circuit has properly held that military detention presents a sensitive and unique context, pertaining directly to matters of national security and military affairs, and that if damage claims are to be afforded to persons formerly detained by the U.S. military, such a cause of action must be enacted by Congress, and not created by the judiciary.
In fact, Congress has, by statute, provided a mechanism for persons held by the U.S. military, claiming personal injury or injury to property, to seek monetary redress, but only through a discretionary administrative claim process. Congress has not, however, provided a cause of action that would allow persons detained by the U.S. military during an armed conflict to sue military officials for monetary compensation. Indeed, when enacting a cause of action for claims of mistreatment, Congress carefully excluded claims against U.S. officials. In this context, it would be wholly inappropriate for a court, on its own, to recognize a Bivens action.
While the panel majority raises a number of policy arguments in favor of extending a money-damage remedy against military officials, its decision overlooks the Supreme Court’s admonition that “Congress is in a far better position than a court to evaluate the impact of a new species of litigation against those who act on the public’s behalf” and “can tailor any remedy to the problem perceived.” Wilkie v. Robbins, 551U.S. 537, 562 (2007). Here, that weighing and balancing resulted in Congress electing not to provide a court damage action. In this context, it is improper for a court to supplement the scheme created by Congress with a Bivens action.
The panel likewise erred in concluding that Secretary Rumsfeld was not entitled to qualified immunity. Plaintiffs would need to show that the former Secretary was personally responsible for the alleged violations of their rights. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-51 (2009). The complaint here, however, failed to allege a plausible link between the policies allegedly adopted by the former Secretary and the alleged mistreatment of plaintiffs while in military detention in Iraq. The panel majority’s decision is in error, creates a circuit conflict on an important issue of law, and plainly warrants review by the full Court.
In support of the government's rehearing petition, David Rivkin and Lee Casey have filed an amicus brief on behalf of "all living former U.S. Secretaries of Defense, except Secretary Rumsfeld, and several former Members of the Joint Chiefs of Staff." The former Pentagon officials, who also appeared as amici at the panel stage and received oral argument time, urge that "the courts may not now conjure up a money damage remedy against servicemembers and government officials and second-guess the decisions made during wartime by the civilian and military officials charged with the Nation’s defense. Congress’s creation of an effective framework for enforcing and vindicating the interests that Plaintiffs allege were violated reflects its judgment that U.S. military personnel and officials not be subject to civil litigation and personal liability for claims like Plaintiffs’."