can the government torture US citizens?

Of course not. Right? The answer to that question is a bit less clear than it should be in light of the policies of the Bush administration. But a case will soon (finally) shed light on the line that not even the military can cross.

Donald Vance and Nathan Ertel are civilian American citizens. They went to Iraq in 2005 to work for a private security company.[1] In 2006, they became suspicious that the company they worked for was involved in corruption and other illegal activities. They contacted US government officials, and the FBI arranged to have them continue reporting suspicious activity. They made frequent reports, including indications that their supervisor traded liquor to American soldiers for weapons and ammunition which he then used or resold.

The security company eventually realized that Vance and Ertel were making these reports and effectively trapped them inside of the company’s compound. Vance and Ertel appealed to their FBI contacts for help and were advised to barricade themselves in a building until help arrived. When American forces arrived, they took the two to the US embassy in Iraq. They were questioned and then allowed to sleep. However, after two or three hours, they were awakened, handcuffed, blindfolded and taken to a US military base.

Vance was kept at military bases for the next three months. Ertel was held for six weeks. For the duration of their time at those bases, they were both subjected to physical and psychological torture. They were kept in solitary confinement with bright lights on and loud music playing 24 hours a day. The cells were kept intolerably cold and there were bugs and feces on the walls. They were deprived of mental stimulus and guards would wake them if they were ever caught sleeping. They were often deprived of food and water and were repeatedly denied medical care. They were physically threatened, abused and assaulted. They experienced “hooding” and were “walled,” i.e. slammed into walls while being led to interrogations blindfolded. For part of the time, their families did not know whether they were dead or alive (though they were eventually allowed to make heavily restricted communications with them). The guards refused to allow them to communicate with a lawyer or court. They were eventually released and dropped off at the Baghdad airport.

They were never charged with any crime. They were never designated as security threats. They were American citizens, and they were civilians.

Thankfully, we are a nation of laws. Vance and Ertel sued Donald Rumsfeld (Secretary of Defense at the time) when they got back to America. It is a tall order to sue a Secretary of Defense. Congress has not passed a law that allows American citizens to sue government officials for Constitutional violations that occurred in war zones. But that really shouldn’t matter. Congress has a lot of power, but it is not more powerful than the Constitution. If there is one thing that document stands for it is that the American government cannot torture its own citizens.

For that reason, the Seventh Circuit Court of Appeals recently held that Vance and Ertel can sue Rumsfeld because they have stated a plausible claim that Rumsfeld did in fact violate their constitutional rights (by authorizing the use of torture and ignoring reports that American citizens were being subjected to it).

Rumsfeld will appeal to the Supreme Court, and that court will probably take the case. It is hard to say what the outcome will be. The court will almost certainly hold that the Constitution bars the type of treatment that has been alleged by Vance and Ertel. The question will be whether the two will be able to do anything about it. If the Supreme Court reverses the Seventh Circuit, it will have to answer one critical question: What is the value of the Constitution if there are no consequences to the government for violating it?


[1] All facts described in this post are allegations made by Vance and Ertel. None of them have been proven in court at this time. However, courts have considered the allegations “plausible.”

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One Response to can the government torture US citizens?

  1. villagebear says:

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