Detention: Law of: D.C. Circuit Development

Seventh Circuit En Banc in Vance

By Benjamin Wittes
Wednesday, November 7, 2012, 1:16 PM

A sharply-divide en banc Seventh Circuit Court of Appeals has handed down its opinion in Vance v. Rumsefeld, reversing a panel decision to allow a suit by American citizens alleging detention and torture by U.S. forces in Iraq. Writing for the majority, Chief Judge Frank Easterbrook opens:

This appeal presents the question whether the federal judiciary should create a right of action for damages against soldiers (and others in the chain of command) who abusively interrogate or mistreat military prisoners, or fail to prevent improper detention and interrogation. Both other courts of appeals that have resolved this question have given a negative answer. Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012); Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012); Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011). Another circuit declined to create a damages remedy against intelligence officials who turned a suspected terrorist over to another nation for interrogation. Arar v. Ashcroft, 585 F.3d 559, 571–81 (2d Cir. 2009) (en banc). We agree with those decisions.

The decision has as a concurrence in the judgement from Judge Diane Wood and dissents from Judges Hamilton, Rovner, and Williams.