A lawsuit accusing former Defence Secretary Donald Rumsfeld of personal responsibility for US forces allegedly torturing two American whistleblowers who worked for an Iraqi contracting firm will be allowed to move forward, a federal appeals court in the US has ruled.
The ruling by the 7th US Circuit Court of Appeals in Chicago comes just days after a similar decision by a federal judge in Washington which gave the green light to an Army veteran – who also alleges he was tortured in Iraq – to sue Mr Rumsfeld for damages.
The Chicago ruling rejected arguments that Mr Rumsfeld should be immune from such lawsuits for work performed as a cabinet secretary.
The US Supreme Court sets a high bar for those suing a top government official, demanding that they show the acts in question are tied directly to a violation of constitutional rights and that the official clearly understood they were violations.
“There can be no doubt that the deliberate infliction of such treatment on US citizens, even in a war zone, is unconstitutional,” US Circuit Judge David Hamilton wrote in his opinion.
A lawyer for Mr Rumsfeld condemned the ruling.
“Having judges second-guess the decisions made by the armed forces halfway around the world is no way to wage a war,” David Rivkin Jr said in a written statement.
“It saps the effectiveness of the military, puts American soldiers at risk, and shackles federal officials who have a constitutional duty to protect America.”
In their lawsuit, Donald Vance and Nathan Ertel claim US forces detained them in 2006 after they alleged illegal activities by the Iraqi-owned company they worked for, Shield Group Security.
Among the methods of torture used against them during several weeks in military camps was sleep deprivation and a practice known as “walling”, in which subjects are blindfolded and walked into walls, according to the lawsuit.
The lawsuit alleges that Mr Rumsfeld personally participated in approving the methods for use by the US military in Iraq, making Mr Rumsfeld responsible, it argues, for what happened to Mr Vance and Mr Ertel.
Their lawyer, Mike Kanovitz, welcomed the ruling, saying the court faced a choice between “protecting the most fundamental rights of American citizens in the difficult context of a war or leaving those rights solely in the hands of politicians and the military”.
“It was not an easy choice for the court to make, but it was the brave and right choice,” Mr Kanovitz said in a written statement.
A spokesman for the US Department of Justice, which is representing Mr Rumsfeld in the case, declined to comment on the ruling.
But Mr Rivkin said he believes the decision will eventually be overturned.