Torture
| Pages | 89-91 |
89
international law update Volume 17, October–December 2011
© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com
American . . . can bring suit in U.S. courts against
a foreign government under the FSIA.’ H.R. Rep.
No. 103-702, at 3 (1994) (emphasis added); accord
H.R. Rep. No. 102-900, at 3-4 (1992).” [Slip op.
10]
Further, “[t]he noncommercial tort exception
excludes from its scope ‘any claim arising out of
malicious prosecution, abuse of process, libel,
slander, misrepresentation, deceit, or interference
with contract rights.’ 28 U.S.C. § 1605(a)(5)(B).
Noticeably absent from this list are the torts listed
in the terrorism exception—‘an act of torture,
extrajudicial killing, aircraft sabotage, hostage
taking, or the provision of material support or
resources for such an act.’ 28 U.S.C. § 1605A(a)
(1).” [Slip op. 10]
By examining the text, legislative history, and
purpose of the Act, the Court determines that
Afghanistan’s argument was incorrect. Instead,
the Act allows for an overlap in application of the
exceptions. “But, Congress has expressly provided
in the statute for how to determine which exception
dominates. It did so by limiting the terrorism
exception to ‘any case not otherwise covered by
[the FSIA].’ 28 U.S.C. § 1605A(a)(1). In other
words, Congress expressly stated that the terrorism
exception should only apply when the preexisting
exceptions failed to cover a case.” [Slip op. 11]
Lastly, though the Court holds that the terrorism
exception of the FSIA did not limit the application
of the noncommercial tort exception, it was made
clear that there was no ruling made regarding the
suciency of the pleadings. erefore, the case was
remanded to the district court to determine such
issues.
: Doe v. Usama Bin Laden, 663 F.3d 64
(2d Cir. 2011).
TORTURE
S C U.S. ’
B
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Donald Vance and Nathan Ertel, two United
States Citizens, voluntarily moved from the U.S. to
Iraq to assist in rebuilding the country after the war
in the country began. e two became employed by
a privately owned Iraqi security services company
in Baghdad. During their employment, they
became suspicious that the company was involved
with corruption and other illegal activity. While
Vance was home in Chicago, he contacted U.S.
government ocials to report his suspicions and met
with FBI agents, who arranged for Vance to continue
reporting suspicious activity back to Chicago. e
FBI agent also requested that Vance and Ertel meet
U.S. government ocials in Iraq to report their
observations. eir observations also implicated U.S.
military personnel. When their employers became
suspicious of their whistle blowing, they revoked the
plaintis’ credentials and identication documents,
trapping them in Baghdad. ey contacted the U.S.
forces for assistance and were instead arrested, taken
into custody and held on a military compound for
several months where they were tortured.
In a suit against the former Secretary of Defense,
Donald Rumsfeld, Vance and Ertel asserted claims
of cruel, inhumane, and unusual punishment in
violation of the Constitution. Rumsfeld moved to
dismiss, but the district court declined to dismiss
the aforementioned claims and held that Rumsfeld
was not protected by qualied immunity and the
plaintis were able to seek a claim under the Bivens
Remedy. Rumsfeld appeals.
e U.S. Court of Appeals for the Seventh
Circuit arms the district court’s denial of
Rumsfeld’s motion to dismiss. e Court nds that
the Plaintis alleged sucient facts to support their
claim. In order to determine whether they would be
able receive a remedy under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), the Court has to nd that Rumsfeld was
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