I’ve been too busy to write about the ruling by a sharply divided three-judge panel of the Seventh Circuit U.S. appeals court that former Defense Secretary Don Rumsfeld can be sued personally by two contractors who were detained in Iraq on suspicion of supplying weapons to insurgents. Were it to be upheld, the decision would be a disastrous blow against our armed forces — inviting exactly the lawfare offensive that the Supreme Court warned against 60 years ago in the Eisentrager case.
Our friend David Rivkin is representing Secretary Rumsfeld. David has issued this statement:
Today’s decision by the Seventh Circuit Court of Appeals is a blow to the U.S. military. According to two judges on the court, the judicial branch is best-suited to decide how to handle detainees captured and held in foreign war zones. This decision is troubling, particularly for the uniformed personnel throughout the entire chain of command who are defendants in this lawsuit. Having judges second-guess the decisions made by the armed forces halfway around the world is no way to wage a war. It saps the effectiveness of the military, puts American soldiers at risk, and shackles federal officials who have a constitutional duty to protect America. That is why the Supreme Court has rejected every lawsuit filed by individuals seeking money damages against those who set and carry out national security policy.
Vague and unsupported allegations should not be sufficient to pull cabinet officials and military officers and soldiers up and down the chain of command into court and distract them from their duty to the country. Indeed, that is exactly what federal courts of appeal and the Supreme Court have uniformly held—until this aberrant decision.
We are confident that this legally mistaken and factually unsupported decision will ultimately be reversed.
We agree with Judge Daniel Manion, who dissented from the two judges’ decision, that the court today has acted to “create new law” contrary to binding Supreme Court precedent and that acting in this “perilous arena is Congress’s role, not the courts’.” Like Judge Manion, we are disappointed in the court’s “failure to recognize the consequences of its holding and the precedent it sets.” The same criticisms apply equally to the decision issued last week by a lower court in Washington, D.C.
The U.S. Department of Justice is representing Secretary Rumsfeld and the other defendants in both of these matters. These are just two of the many dozens of lawsuits that have been filed against former cabinet officials and military personnel.
When this case was brought to the Seventh Circuit Court of Appeals, every living former Secretary of Defense, as well as numerous other national security officials, stepped forward to support the defendants in this case. They recognize, correctly, the danger of subjecting military personnel and senior officials to civil litigation and personal liability for carrying out their duties.
The decision of two judges not to dismiss the case was a serious mistake, but it will ultimately be reversed, just as the Supreme Court has twice thrown out similar cases against Attorney General John Ashcroft.