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Vance v. Rumsfeld

Imagine being tortured in a military prison by officials of our own government during interrogations that go on for months.  The tactics wear you down, your mind and body begin to fail you, and you are constantly threatened that if you do not tell the truth you will never be allowed to leave.  The problem is:  you’ve been telling the truth all along…

The Rumsfeld Brief Project is the true story of Don and Nathan, two young Americans who were detained in Iraq under the Bush administration’s rules for enemy combatants.  The men were patriots – whistleblowers about corruption who committed no crime – but, under the administration’s detainee rules, it took months for them to clear their names.  All the while, government officials who were following the administrations rules, interrogated and tortured them.

Don and Nathan sued former Secretary of Defense Donald Rumsfeld for creating policies that authorized their torture.  [See Second Amended Complaint].  In March 2010, they became the first people in the country to obtain a ruling that Mr. Rumsfeld, as a cabinet-level official,  must answer for torture in a court of law. [See Judge Anderson’s Opinion].

The government has appealed that ruling to United States Court of Appeals for the Seventh Circuit and it is raising constitutional questions in which all Americans have a stake:  Does the Bill of Rights prohibit torturing American citizens?  If it does, are high-placed officials nevertheless immune when they chose to use torture in aid of a war?  Are judges even competent to decide these questions or must we leave it to Congress and the executive branch to enforce the Constitution in wartime? [See the Department of Justice’s Brief ].

UPDATE: On August 20th, fourteen retired U.S. officials – former Secretaries of Defense and members of the Joint Chiefs of Staff – filed an amicus curiae brief in support of Mr. Rumsfeld.  [You can read the brief by clicking here .]  To comment on the brief, please follow the same rules as with the DOJ’s brief.

The Rumsfeld Brief Project is designed to open up a forum on these and other issues raised in the DOJ’s brief.  We, the attorneys representing Don and Nathan, are decidedly liberal, but we are respectful of all points of view and appreciate that the issues in this case have the capacity to affect all Americans and the future of the nation we share.  We also believe that by incorporating a wide range of philosophies into Don and Nathan’s response we will produce a position that is, frankly, better for the long term interests of our country than what the DOJ is pursuing as it tries to advance only the executive’s powers.


All people with expertise or concern about the issues raised by the government’s brief are welcome to participate in this forum.  The only rules are that we treat each other’s views respectfully and that we respond to each other’s points honestly.  Whether you debate intellectually or emotionally, you can be vigorous without being vicious. Uncivil language and off-topic posts will be deleted.  In addition, although the forum required you to register and sign in to post, we invite you to post with the username anonymous and the password 12345 if you prefer to contribute to the discussion anonymously. YOU CAN POST AND READ COMMENTS BY FOLLOWING THIS LINK.

Here are just a few other requests:

1.   It will increase the quality of the debate if participants read the [Complaint] to see exactly what Don and Nathan alleged.  The [DOJ’s Summary of the Facts] slants and edits the allegations in the complaint to suit its particular advocacy.  We are not casting aspersions; all advocates do the same thing.  If you want to see the slant that Don’s and Nathan’s lawyers put on the allegations when briefing the case in the lower court, you can read the [Plaintiffs’ Summary of the Facts].

2. When starting a topic on a particular part of the brief please copy and paste that part of the brief (but not more than one paragraph) into the opening post and state the page of the section and page of the brief where the outtake appears.  For example:

“Nor can plaintiffs rescue their claim by relying upon their assertion that Secretary Rumsfeld had knowledge of alleged harsh treatment and failed to take corrective action. See App. 121, 126-27. The Iqbal Court expressly held that a claim of “knowledge and acquiescence” is insufficient to impose supervisory liability. 129

S. Ct. at 1949.”

ARGUMENT SECTION II.B.2., pages 45-46.

3. You may comment and support your arguments in any way you see fit.

When commenting on facts in the case, it would be helpful if you cite to the paragraphs of the complaint alleging those facts.  For example:

The plaintiffs here have alleged a great deal more than just acquiescence by Mr. Rumsfeld.  The complaint (paragraphs 233-252), shows that he set up a system that allowed torture.  That is different than simply acquiescing after learning that torture was being used by those under his command.

4.   Also, if you have case law that supports your position, please cite it by name and reporter.  For example:

Even though Congress eventually overruled  Mr. Rumsfeld’s policy decisions via the Detainee Treatment Act (“DTA”), an engrained system that relies on torture will not dissolve on its own.  Having set the system up, Mr. Rumsfeld was responsible to dismantle it if he knew that torture was continuing even after the DTA.  See Rodriguez-Garcia v. Miranda-Marin,  610 F.3d 756, 768 (1st Cir. 2010) (“[O]fficials may be held liable ‘if the plaintiff can establish that her constitutional injury resulted from the direct acts or omissions of the official, or from indirect conduct that amounts to condonation or tacit authorization,’”).

Thanks for your interest and participation.

Case Documents:

Second Amended Complaint

Plaintiffs’ Summary of the Facts (from their winning District Court Brief)

Judge Anderson’s Opinion

Department of Justice’s Brief

DOJ’s Summary of the Facts

Amici Curiae Brief


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