A federal appeals court in Chicago ruled 2-1 Monday not to remove former U.S. Defense Secretary Donald Rumsfeld as a defendant in a torture lawsuit. UPI/Roger L. Wollenberg | License Photo

CHICAGO, Aug. 8 (UPI) -- A federal appeals court in Chicago ruled 2-1 Monday not to remove former U.S. Defense Secretary Donald Rumsfeld as a defendant in a torture lawsuit.

The suit was brought by two employees of Shield Group Security, Nathan Vance and Nathan Ertel, who say they were imprisoned in Iraq without charge and tortured by the U.S. military for three months after they alleged their company was paying off local officials for contracts.


In 2006, the two men "were released from military custody without ever being charged with a crime. They then filed this suit for violations of their constitutional rights against ... Rumsfeld and other unknown defendants" under U.S. Supreme Court precedent, the majority opinion said. "Plaintiffs seek damages from Secretary Rumsfeld and others for their roles in creating and carrying out policies that caused plaintiffs' alleged torture."

Rumsfeld and the U.S. government moved to dismiss the claims, but a U.S. judge in Chicago allowed the claims for torture to proceed, citing the Fifth Amendment's substantive due process clause.

"We agree with the district court (judge) that the plaintiffs may proceed with their ... claims against Secretary Rumsfeld," the majority opinion said. "Taking the issues in ascending order of breadth, we agree first, applying the standards of (the Federal Rules of Civil Procedure) that plaintiffs have alleged in sufficient detail facts supporting Secretary Rumsfeld's personal responsibility for the alleged torture. Second, we agree with the district court (judge) that Secretary Rumsfeld is not entitled to qualified immunity on the pleadings."

The opinion said under U.S. law it "was clearly established in 2006 that the treatment plaintiffs have alleged was unconstitutional. No reasonable public official could have believed otherwise."

The men are making "Bivens" claims, named after the Supreme Court ruling in 1971's Bivens vs. Six Unknown Named Agents.

"Next, we agree with the district court that a Bivens remedy is available for the alleged torture of civilian U.S. citizens by U.S. military personnel in a war zone," the opinion said. "We see no persuasive justification in the Bivens case law or otherwise for defendants' most sweeping argument, which would deprive civilian U.S. citizens of a civil judicial remedy for torture or even cold-blooded murder by federal officials and soldiers, at any level, in a war zone."