The last week has seen one of the most exciting legal developments in some time regarding the torture that took place under the Bush administration. I don’t have much original analysis to provide, but there are a lot of great pieces and developments out there and I wanted to bring them into one place. Here’s the recap:
On August 2, U.S. District Judge James Gwin in Washington, D.C. ruled that a civil suit against former Secretary of Defense Donald Rumsfeld by a translator/civilian contractor & Army veteran, “John Doe,” could proceed. (Opinion here.)
On August 8, by a margin of 2-1, a panel from the Court of Appeals for the 7th Circuit ruled that a civil suit against Rumsfeld and the U.S. from two former military contractors, Don Vance and Nathan Ertel, could move forward. (Opinion here.)
There are two other cases working their way through the Ninth and Fourth circuits, respectively, which are of direct relevance, via Josh Gerstein. They concern Jose Padilla, the torture victim of Rumsfeld v. Padilla fame. Neither has received a decision at the court of appeals level.
The first was a June 12, 2009 ruling by U.S. District Judge Jeffrey White in San Francisco, granting Padilla & Estela Lebron the right to sue former OLC lawyer and torture memo author John Yoo. (Opinion here.) The second was the February 7, 2011 ruling by U.S. District Judge Richard Gergel in South Carolina that dismissed a case brought by Padilla against Rumsfeld. (Opinion here.)
As Gerstein points out and Benjamin Wittes highlights, there may now be enough cases proceeding that a Supreme Court decision is in play. The court might weigh in to clarify or mediate between separate court of appeals rulings, and they could eventually have three or four they could choose to address.
This is important not only because Padilla and the new claimants went through harrowing experiences that merit further consideration of their rights. With the Obama administration’s decision to pursue only the “bare minimum of accountability” on torture and other abuses during the Bush administration and the limits of international courts, suits of this kind are likely one of the last significant legal avenues available. That they’re reaching a critical mass at the same time could prove historically significant.