It's been a tough month for Donald Rumsfeld. First, a federal judge in D.C. ruled that an Army veteran may proceed with a civil suit against the former defense secretary for torture he claims he suffered when he was a translator in Iraq. A week later, the U.S. Court of Appeals for the 7th Circuit in Chicago upheld a lower court's ruling that two American contractors may continue their lawsuit against Rumsfeld, claiming he's personally liable for torture they endured after they blew the whistle on corrupt practices taking place at an Iraqi-owned contractor where they were employed.
Yesterday we spoke with civil rights attorney Mike Kanovitz, of Loevy & Loevy in Chicago and an Illinois Super Lawyers listee, who's representing the plaintiffs in both cases, on why he's going after Rumsfeld. Today he tells us how he's kept the cases from being dismissed.
The DOJ is arguing that Rumsfeld is immune because he was acting as a public official. How have you been able to keep your cases from being dismissed?
Immunity is definitely part of it, but his main argument is that the courts have no authority to even consider a case like this against an official at his level-that the door should never even be opened [because they were wartime decisions]. So we had to beat that back first.
That would give government freedom from any and all accountability.
And that's basically what the court was confronted with here: If we don't allow a suit like this to go forward-and that, yes, constitutional rights were violated under these circumstances-then the constitutional rights are out the window. Government officials are rarely prosecuted by their own administrations, so for people like my clients, their only chance to enforce their constitutional rights is in a post-deprivation lawsuit where they seek money damages.
Still, you're not the first to bring this type of case. All the rest have been dismissed.
All the cases that have tried so far and failed are cases brought by aliens. [My cases] involve American citizens. It doesn't change the underlying flaw-you can't torture an American, you can't torture a non-American. But the alienage issue gives courts an out that they don't have when it's an American citizen. If an American court won't hear an American citizen's case, there's no place else for them to go.
And these could ultimately lead to a jury trial?
That's where the whole thing will be headed-assuming that the Supreme Court allows this kind of case, or if cert is not granted.
And you could potentially cross-examine Rumsfeld? How will you approach that?
I'll probably ask my uncle-and partner-[Arthur Loevy] to do it. It's the sort of thing he is great at.
If the cases are allowed to go that far, what are the grander implications?
That [the court] rejects arguments that became popular during the war: that you can leave fundamental constitutional rights solely in the hands of executive officials and that the courts have no place [in determining their constitutionality]. For hundreds of years, courts have been very careful about telling the military [what it can and can't do], this case does not change that but it does make clear that there is a line when courts can step in. Simply because there's a military connection doesn't mean that a case is about military decision-making. Here, you've got Congress and the president saying "It is not the policy of the United States to use torture." So simply invoking this mantra about, "Well, it's the military..." just ain't going to cut it.