Another opportunity for the SCOTUS to disgrace itself

Former Defense Secretary Donald Rumsfeld may be held personally responsible in a civil lawsuit for the alleged torture of two American citizens held without charge in a US military prison in Iraq in 2006, a federal appeals court ruled on Monday.

The panel voted 2-to-1 to allow a lawsuit filed by the two former detainees, Donald Vance and Nathan Ertel, to move forward toward a trial before a federal judge in Chicago. * * *

“We agree with the district court that a … remedy is available for the alleged torture of civilian US citizens by US military personnel in a war zone,” Judge David Hamilton wrote for the two-judge majority.

He said the government’s argument, if accepted, would “deprive civilian US 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.”

“United States law provides a civil damages remedy for aliens who are tortured by their own governments,” Judge Hamilton wrote. “It would be startling and unprecedented to conclude that the United States would not provide such a remedy to its own citizens.”

In a dissent, Judge Daniel Manion said his two colleagues were for the first time extending constitutional protections to an active war zone. Such action should be left to Congress, not the courts, he said.

First of course the op has to survive en banc review. (Via.) Then five justices can rule that American civilians can indeed be tortured with impunity by their own government without judicial recourse.

(The "active war zone" argument is a red herring. Shooting a guy in a firefight in Fallujah who turns out to be a U.S. citizen? Not actionable. Carting a guy off to prison and torturing him at your leisure? Not an "active war zone" in the practical sense that would support judicial abstention.)