By Dietrich Knauth

Law360, New York (June 15, 2012, 7:47 PM EDT) — The D.C. Circuit ruled Friday that a former U.S. government contractor could not sue former Defense Secretary Donald Rumsfeld for monetary damages arising from his alleged torture in Iraq, dealing another blow to a damages theory that has stumbled in two other appeals courts.

The circuit court ruled that the Supreme Court’s 1971 decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics — a decision allowing a citizen to sue for monetary damages where no other federal remedy was provided for the protection of a Constitutional right — had never been applied “in a case involving the military, national security, or intelligence.”

Chief Judge David Sentelle pointed out that the Supreme Court very rarely applies Bivens to new causes of action — only twice in the past 41 years, in fact.

“The implications of a Bivens action…is not something to be undertaken lightly,” Judge Sentelle wrote.

U.S. citizens working under Iraq contracts have alleged in the D.C. and Seventh circuits that they were detained and tortured in Iraq and sought damages under Bivens. The Seventh Circuit case is awaiting an en banc ruling.

The theory has also has failed in the Fourth Circuit, which ruled that convicted terrorism conspirator Jose Padilla could not pursue Bivens remedies against Rumsfeld. The Supreme Court declined to take up an appeal of Padilla’s case on June 11, leaving the Fourth Circuit decision untouched.

The Seventh Circuit went the furthest with the theory, ruling in August that Rumsfeld did not have immunity in a suit brought by contractors Donald Vance and Nathan Ertel. That ruling, however, was vacated in October, when the entire Seventh Circuit decided to rehear the case en banc. No ruling has yet been reached by the full Seventh Circuit.

There is no disagreement among the circuit courts, because the Seventh Circuit rehearing means the original split decision, which was the subject of a contentious dissent, might as well have not happened, said David B. Rivkin of Baker Hostetler LLP, who represents Rumsfeld in the Seventh Circuit.

“I’m very comfortable predicting that we’ll do well and that the balance of the Seventh Circuit will come to the right decision,” Rivkin said.

The anonymous plaintiff, John Doe in court filings, alleged that Rumsfeld personally approved torture techniques, including isolation and sleep and sensory deprivation, and later ordered those practices to be used at Camp Cropper in Baghdad, where Doe was held.

But the D.C. Circuit ruled that the judicial branch should not interfere in the prosecution of wars, which are the province of the political branches of government.

“Military detainee cases implicate similar concerns regarding the conduct of war, the separation of powers and the public scrutiny of sensitive information,” Judge Sentelle wrote.

Jesselyn Radack of the Government Accountability Project, one of Doe’s attorneys, said Doe would take the fight to the Supreme Court if need be.

“It’s a disappointing decision, and we’ll either ask the full circuit to rehear the case en banc or file a petition of certiorari to the Supreme Court,” Radack said.

Radack said her client’s suit seeks an expansion of Bivens but argued that “these are pretty horrific circumstances that maybe warrant an expansion.”

“The Supreme Court has never applied a Bivens remedy to a military or intelligence situation, but we’ve never been in this kind of situation where we’ve tortured our own people in the guise of national security,” Radack said. “This is a scary holding that our military can capture a U.S. citizen and hold them for months and months without trial counsel and judicial review and torture them and they have no redress.”

The courts must be able to protect the constitutional rights of U.S. citizens, even in war zones, Radack added, saying that the D.C. Circuit’s military exception could be an enormous loophole during a period of “indefinite war” that seems to involve many areas of the world at once.

Doe claims he was blindfolded, handcuffed and repeatedly kicked in the back during an initial interrogation in November 2005, then taken to Camp Cropper, a U.S. military prison where he was repeatedly choked, exposed to extreme cold and continuous artificial light, and interrupted whenever he tried to sleep by guards who banged on his door or blasted heavy metal and country music into his cell. He later was moved into a cell with suspected terrorists who knew about his military ties, leaving him in constant fear for his life, according to the complaint.

The U.S. Department of Justice, which represents Rumsfeld, says Doe was detained on suspicion that he accepted bribes from Iraqi customs officials to allow insurgents, weapons and other contraband to pass through the border between Syria and Iraq, as well as for possible collaboration with Syrian or Iranian intelligence services, according to court filings.

But Doe says he was a translator for a U.S. Marines intelligence gathering team, and that he was detained because the U.S. military wanted to keep him quiet about secret negotiations with with Abdul Sattar Abu Risha, a Sunni sheik who became a key U.S. ally and led an uprising against al-Qaida before being assassinated in 2007.

Doe is represented by Michael Kanovitz and Gayle Horn of Loevy & Loevy and Jesselyn Alicia Radack of the Government Accountability Project.

The case is Doe v. Rumsfeld et al., case number 11-5209, in the U.S. Court of Appeals for the District of Columbia Circuit.

Published by Law360