Appeals Court: Tortured US Whistleblowers Can’t Sue

Appeals Court: Tortured US Whistleblowers Can’t Sue | Torturing detainees ‘part of human nature,’ ruling insists

The 7th US Circuit Court of Appeals has thrown out a lawsuit by two US whistleblowers, Donald Vance and Nathan Ertel, who were tortured by the US military after coming forward with evidence of wrongdoing by the contracting company they were working for.

The court ruled that US military commanders “enjoy broad immunity” in cases of torture abroad and that the military chain of command “couldn’t be responsible” just because detainee abuse crossed a legal boundary. The ruling added that torturing detainees is “a part of human nature that is very difficult to control.” They added that being liable for the torture would “distract” the military’s leadership.

US Court of Appeals Judge James Gwim had previous rejected Obama Administration arguments to this effect, saying that torture lawsuits could continue against officials and that US citizens were always entitled to due process related to their detention. The administration condemned Gwim for “second-guessing” the military.

Vance and Ertel approached the government about an illegal program dubbed “beer for bullets,” in which the company they were working for smuggled liquor into Iraq to trade to US soldiers for their weapons and ammo, and then sold those weapons on the open market. When the company learned they were whistleblowers, they had their papers confiscated and the military captured them when they attempted to return to the US.

Dissenting Judge David Hamilton blasted the ruling, saying that there were clear avenues for handling torture cases inside the US, and there was no good reason to “erect hurdles” just because the US citizens were tortured by the US outside of the country.

“That disparity attributes to our government and to our legal system a degree of hypocrisy that is breathtaking,” Hamilton added. Vance and Ertel’s lawyer says the two have not decided whether or not to appeal to the next level, but said he believes the ruling’s grant of blanket immunity will eventually wind up in the Supreme Court.

Last 5 posts by Jason Ditz

Author: Jason Ditz

Jason Ditz is news editor of Antiwar.com.

  • TooTrue

    This is truly disgraceful. Legal officials who rubber stamp war crimes belong before a war crimes tribunal themselves.

  • Janine

    Wow! I guess we wont be hearing the US complain about torture committed by other countries then since its just 'part of human nature' and policing it would be distracting? – makes me sick!!

    • masmanz

      It would have been a lot easier to win if the guy had sued the country where the torture was committed. So if the US military tortures someone in Gitmo the victim should sue Cuba. The US judges will be happy to adjudge in his favor. Or, better yet, just sue Iran and you will receive a favorable judgment.

  • MvGuy

    Another legal outrage….. Those judges should be impeached……. Women should feel especially in danger when the boys will be boys excuses are used to shun accountability……Torture, rape and murder….BAU !!!!!!!!!!! Business as usual…….. It represents incomprehensible decline in standards of justice in no longer free or fair what's left of America………

    • Concerned

      Speaking of declining standards, why isn't one period per sentence enough?

      • WashingtonDC Goddamn

        ….ellipses are free, free, free….

        detainees are not.

    • curmudgeonvt

      Oh Great!!! It wasn't bad enough that your comments woke up the rightwingers and Israel Firsters every once in a while…now you've gone and woken up the Grammar Police…

      • MvGuy

        I write for impact..!!! Not to please the grammatically fastidious or the punctuation bean counters…… Periods are free…….. Use all you like………… I use them to compel pause, for consideration.. Thanks · curmudgeonvt ………….. You have made my day..!!!

  • nomange

    One wonders what this court would do if judges themselves were tortured for having rendered a decision that impinged on what now appears to be the unimpeded prerogative of the Executive, in this case the Defense Department. No one in Congress seems to care about exposing and holding officials accountable for wrongdoing, especially since so many of them are implicated in some way. Indeed, Senators like Feinstein, the protectress of the national security state have helped facilitate results like these.

  • Jimbobla

    The U.S. Constitution is a useless rag. The Anti-Federalists knew a wolf in sheep's clothing when they saw one. The three branches of government have joined forces against the citizens of the individual states of America. Remove your consent to be governed. Don't vote. Turn your back on the U.S. government. Participating by voting makes you complicit in their actions.

    • MvGuy

      No Jimbola, voting for the Dems or the Repugs "makes you complicit in their actions"….. Voting for Gary Johnson does NOT…….. Writing in Ron Paul does not……… Better to do something than nothing…….. Also we want elections to continue……. Bad as it is here with compromised (owned) candidates and pole procedure, it is still far better than an absolute rule by the unelected who never let the electorate hold sway ….. If you really want to, quit doing something, arrange your life so you can legally quit paying taxes…. That is the true threat to their imperious imperial perch atop the Washington dungheap………

      • Mike

        Sorry but voting for anyone IS nothing. Didn't you see how Ron Paul was completely railroaded at the convention? Liberty lovers will NOT be allowed to get into high office. The entire game is completely fixed now. It's a damned joke!

  • Jimbobla

    The U.S. Constitution is a useless rag. The Anti-Federalists knew a wolf in sheep's clothing when they saw one. The three branches of government have joined forces against the citizens of the individual states of America. Remove your consent to be governed. Don't vote. Turn your back on the U.S. government. Participating by voting makes you complicit in their actions.

  • Harry

    So when the Israelis find their next old Nazi and claim he was responsible for torture will he be able to claim torturing prisoners is a part of human nature that is very difficult to control– and cite this decision.

    Just asking,

  • Dave

    So you have sown, so shall you reap! The problem is all of your own making, for years and years the population has wallowed in false prosperity with decadent and lavish lifestyles funded by immoral banks printing money and selling debt, so the masses can consume to their hearts content. meanwhile to prop up this lifestyle the government has to expand its reach overseas for the resources and power needed to maintain it as number one global superpower, at the cost of everything and everyone not with the program. You have all lived as they had envisioned, and the price to be paid now is that the government will do and say what it pleases and you will not complain, you will fall into line and you will drink the cool aid. You are now paying the piper for your own greed and silence when your government did terrible things in your name! Sucks doesn't it?

  • shadoobe

    And so there was speculation as to whether this should be taken up with the Supreme Court.

    Um, well, yes. Yes it should go to the Supreme Court. Are you kidding? Let's hear the Supreme Court say, in the light of day, this alright. Let's hear them say, 'Yeah, sure, a guy discovers solders are selling weapons for bear, and reports it, and response, the military tortures them. Yeah, there's nothing wrong with that.'

    Let's hear 'em say it.

  • MoT

    The bald-faced brazen bastards. I'm truly stunned.

  • DDearborn

    Hmmm

    Perhaps a brief civics lesson is in order here to demonstrate just how wrong and unconstitutional this ruling is.
    Lets start with the very first Amendment. This is the one where we the people have an inalienable RIGHT to seek redress for grievances against the government. Soldiers are government employees.
    And no there is no exemption for "soldiers" anywhere in the Constitution" Because the soldiers are just citizens like you and I. Only when Congress declares war (which they have not) does the Constitution provide for some limitations.

    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

    Then there is the 5th amendment that states we cannot be deprived of life liberty or property without due process. This also clearly states we cannot be compelled to testify against ourselves. Obviously being abducted and tortured violates these basic inalienable rights. No exemptions for "soldiers" here either.

    How about the 8th amendment that protects us from cruel or unusual punishment. I am pretty sure torture falls under that category. Perhaps we should send those judges to Gitmo for a few weeks of remedial education to allow them time to better understand the facts in the case.

    These basic protections used to be taught to Jr. High School kids all over America. It is interesting to note that they are no longer taught in most public schools at all.

    So any 13 year old can clearly see that the judges where violating the rights of the victims. And it is obvious to even a casual reader of the Constitution that there is no "immunity clause" for government employees like the President or the Congress or soldiers. They are after all just citizens like the rest of us. The ruling of this court was a crime against America. This ruling was an act of judicial terrorism.
    This ruling is an act of tyranny that was expressly designed to intimidate American citizens into remaining silent in the face of obvious government and corporate criminal activities. This ruling is the
    act of cowards and traitors……..It is a reminder to all of us that the greatest dangers to our liberty today are not occuring in some far off land but right here at home. And it is our own government that is stealing our liberties and attempting to destroy the Republic not women and children in third world countries. Which of course begs the question: if the women and children we have killed by the thousands in the Middle East are not a threat to us (they are not) than why are we killing them?
    This ruling is part of the answer: To justify taking away our Constitutional and God given freedoms.

  • WashingtonDC Goddamn

    "…..the Obama Administration's arguments……."

    ObamaNixon put a stop to torture! …….HAHAHAHA…….

    "If the President pulls out a detainee's fingernails, it's NOT torture!"

  • Forget about the 10 Commandments and all that. America is re-writing the rule book and it expects all Nations of the world to toe the line just not itself.

    When you have a huge Army, you make the rules, it seems. But when you have a huge Army, you also suffer derangement. America is clearly deranged and it gets worse by the day.

    Where is Freud when you need him?

  • Canadian

    "The court ruled that US military commanders “enjoy broad immunity” in cases of torture abroad and that the military chain of command “couldn’t be responsible” just because detainee abuse crossed a legal boundary. The ruling added that torturing detainees is “a part of human nature that is very difficult to control.” They added that being liable for the torture would “distract” the military’s leadership."

    Well, it seems to me that is somewhat different than the reasoning which was applied to Japanese military leaders after WW II.

    Back then, I believe there was something called "Command Responsibility" for torture. And under this doctrine, Japanese military leaders were held responsible for torture (such as waterboarding) EVEN IF THEY DID NOT KNOW IT WAS HAPPENING. They were in command, and were therefore held responsible because the torturers were considered to be under their control. The commanders were therefore hanged as war criminals.

  • capt jenks

    The appeals court judges need to go.