Supreme Court Shuts Door on Gitmo Torture Case

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Tuesday, December 15, 2009 at 6:00 am
Detainees at Guantanamo Bay (The Toronto Star/ZUMApress.com)

Detainees at Guantanamo Bay (The Toronto Star/ZUMApress.com)

The Supreme Court dealt a harsh blow on Monday to victims of abuse by U.S. officials during the “war on terror.” The court announced it would not review a federal appeals court ruling that dismissed a lawsuit by four British citizens who claim they were wrongly arrested, detained and mistreated by American officials at the U.S. detention facility at Guantanamo Bay, Cuba. The U.S. Circuit Court of Appeals in Washington, D.C., had ruled in April that government officials were entitled to “qualified immunity” from suit because it wasn’t clear at the time that abusing Guantanamo prisoners at was illegal.

[Law1] That appeals court decision in Rasul v. Rumsfeld effectively doomed many more cases that might have been brought by the more than 500 detainees who’ve been released from the Guantanamo prison, many of whom were subjected to so-called “enhanced interrogation techniques.” Those techniques include a broad range of abusive tactics, from weeks of sleep and food deprivation to stress positions, sexual humiliation, death threats and “waterboarding,” or simulated drowning. The four men who sued former Defense Secretary Donald Rumsfeld and other senior military officers for approving those techniques claim that between 2001 and 2004, when they were released, they were subjected to repeated beatings, prolonged sleep deprivation, extremes of hot and cold, forced nakedness, death threats, interrogations at gun point, menacing with unmuzzled dogs, and religious and racial harassment. The use of such techniques has been documented in Congressional reports, and Justice Department memos reveal that such tactics were explicitly approved by Bush administration lawyers.

The court’s decision not to review the Rasul case does not mean it agrees with the lower court’s decision. But it leaves the court of appeals’ ruling in effect and places a stumbling block in the path of Guantanamo detainees who claim they have been abused in U.S. custody and seek redress in court.

“When the court decides not to hear a case, it doesn’t say anything about the merits,” said Stephen Vladeck, professor at American University’s Washington College of Law and expert on national security and constitutional law. “But it leaves intact a fairly sweeping opinion by the D.C. Circuit — one that I think will be hard to overcome for any future plaintiffs suing based on abuse that allegedly occurred at Guantanamo.”

Shayana Kadidal, a senior attorney at the Center for Constitutional Rights and one of the lawyers who brought the Rasul case, agreed. “This decision is certainly bad news for the majority of people who could conceivably want to sue for damages at some point,” he said. In addition to monetary compensation, he said, many former Guantanamo detainees are seeking rulings to clears their names, because when they return to their home countries they’re often still suspected of terrorism and unable to secure employment.

At issue is an aspect of the D.C. Circuit’s opinion that found that government officials cannot be held legally responsible for any mistreatment because when the plaintiffs sued in 2004, “it wasn’t clearly established in the law that they were entitled not to be tortured or subjected to religious abuse,” said Kadidal. Since then, several Supreme Court cases have ruled that Guantanamo detainees have at least some constitutional rights. Which ones, however, remain unclear.

The D.C. Circuit’s ruling “reads out the good faith requirement in qualified immunity,” said Eric Lewis, a Washington, D.C., attorney who brought the Rasul case with CCR. “The whole notion of qualified immunity is that officials acting in good faith should have some protections.” But the law has long been clear that torture is not legal, said Lewis, citing the Convention Against Torture, among other laws. The Rasul decision, and the Supreme Court’s refusal to review it, he said, “makes it hard to know, what’s the law for next time?”

In fact, the D.C. Circuit’s latest Rasul opinion (the appeals court has ruled twice in this case) suggests in non-binding language that Guantanamo detainees have no constitutional rights other than the right of habeas corpus (the right to challenge the lawfulness of government detention), which the Supreme Court had already ruled applied to Guantanamo detainees. That finding cleared the way for the Obama administration, like the Bush administration before it, to argue that there is no constitutional right not to be tortured or otherwise abused in a U.S. prison abroad.

The high court today refused to weigh in on that issue. “I was hoping that the Supreme Court wouldn’t allow the last word on torture at Guantanamo to be that [detainees] have no rights and if they do, nobody knew at the time,” said Lewis. “That’s very disappointing.”

The D.C. Circuit opinion is not binding on courts in other parts of the country, however, which still could rule differently on some of these issues. A federal court in San Francisco, for example, ruled in June that Jose Padilla, an American citizen imprisoned as an “enemy combatant” without charge at a U.S. Naval brig in South Carolina, can sue former Justice Department lawyer John Yoo , whose legal opinions during the Bush administration approved the harsh and abusive treatment Padilla received. The court in that case denied Yoo’s claim to qualified immunity. That case is now on appeal in the Ninth Circuit.

Qualified immunity is hardly the only obstacle to holding government officials liable for torture and other abuse, however. Other cases, brought on behalf of former prisoners who were deemed “enemy combatants,” are barred by the Detainee Treatment Act of 2005, in which Congress stripped the courts of jurisdiction over any lawsuits complaining about the treatment of enemy combatants. (At least one case, Al-Zahrani v. Rumsfeld, is now challenging the constitutionality of that law.)

Then there’s the lawsuit brought by Canadian citizen Maher Arar, arrested while changing planes in New York and sent to Syria by U.S. officials, where he claims he was interrogated under torture. That case was recently dismissed by the Second Circuit Court of Appeals in New York on the grounds that “special factors” — such as potential implications for national security and foreign relations — counseled against allowing the case to proceed. (Arar could still seek review in the Supreme Court.)

Other cases have been dismissed on similar grounds. “The more structural, fundamental problem is where the cause of action comes from,” said Vladeck , referring to the basis for a victim’s right to sue. Although in some cases federal courts will imply a right to sue government officials for a constitutional violation, “the Supreme Court over the last 20 years has been incredibly hostile to damages suits against federal officers,” said Vladeck.

In its latest move, the Supreme Court’s refusal to consider whether government officials can reasonably claim they didn’t know it was unlawful to torture prisoners in U.S. custody reinforces the viability of that argument for the future.

The court’s inaction also effectively ends the four British plaintiffs’ quest for a remedy — and likely stymies similar actions from many more former Guantanamo prisoners who hoped for official acknowledgment or compensation for what they endured. “Nothing legally would stop the executive branch or Congress from conceding that mistakes were made and these guys are entitled to some kind of reparations,” said Vladeck. “But I cannot imagine that’s going to be very politically feasible.”

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Comment posted December 15, 2009 @ 3:26 pm

Helping crush freedom, democracy and justice in the United States since 2000, ladies and gentlemen, the corrupt and perverse Roberts-Scalia Supreme Court. Bedtime for democracy.


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Comment posted December 16, 2009 @ 12:29 pm

Beware The Rise Of The Fourth Reich

04 September,2006
Countercurrents.org

Almost beyond speech. I, am an attorney, an activist, a former Air Force Officer who served in Desert Storm, a veteran who waited more than 10 years for her VA claim, a champion of the underdog and tireless fighter, am almost without words, and I am afraid….

I do not fear for myself, though perhaps well I ought to…but I have real and palpable fear for this country, for what is left of Democracy, for the future of my children and, for the rest of the world.

I watch as everything I was educated to believe in crumbles around me. I watch as there are secret detentions, extraordinary renditions, secret trials, disappeared, people held with no charges and no evidence, searched without judicial review and without their knowledge, a homeland security office that last spoke of round ups of “disgruntled” and people from 33 nationalities. At the same time, our unused military bases are being turned into concentration camps. And, this is just the start, the time before the sunset provisions of the Patriot Act or being eliminated either through the Hatch bill or by the Domestic Security Act…

I watch and I am afraid…

I watch the Zionist JINSA Cabal carry out its arrogant and racist Program for a New American Century as it ignores international law and international will, as it commits war crimes with no shame, and guts benefits to the elderly, to the veterans, to health care and education, while subsidizing all of those programs inside “Israel.” They call Sharon, the butcher, a man of peace, as the blood of thousands at Sabra and Shatilla are still wet in my tears. The US protects Israel, a “nation' who stands in violation of more UN resolutions than any other nation on earth. Protected as she holds onto to her atomic weapons . Protected in her racist apartheid genocide by the US veto used as a bludgeon against the people of Palestine. And they call those who defend Palestine terrorists. And they call the deserter that stole the election the Commander in Chief and a leader of Democracy.

I could almost laugh through my tears, but instead, I watch, and I am afraid.

I watch this country accept willingly the loss of all that the founding father's proclaimed to be important, the destruction of separation of powers, checks and balances, due process and free speech, the right to privacy, the targeting of people based on religion and ethnic origins. These are things men fought and died for and they are now given up willingly.

I watch and I am afraid…

I watch as the rape of the American taxpayer finances the million dollar a year payola to Cheney from Halliburton, the dealings of Perle, and the declarations of Woosley that there is a World War IV and it is against Islam. These Zionist members of JINSA, who will be running a “free” Iraq, as they are about to declare war on Syria, or Iran. Endless war, endless bloodshed, endless injustice.

I watch as the rape and sodomy of children in the Gulag that is Camp Bucca, or Abu Ghraib is tolerated while the men who conspired to evade International law still stand at the helm of a country I no longer feel part of. I wonder do the screams of those babies echo in the minds and hearts of our Senators who have seen these atrocities on tape?

I watch, and I am afraid.

I am afraid because this is the rise of the Fourth Reich…the rise of racist and immoral power hungry men that rationalize crimes against humanity and criminalize all dissent.

I am afraid, and I have run out of words, or, rather, it would seem words have had no effect, have done nothing at all to stop the rise of evil and ruthless men to eviscerate all that once made this Nation great.

I am afraid, and I will become one of the disappeared. I will either be taken away, or I will leave this place, this country that I no longer know and now fear. I am a stranger in my own land…I am a woman without a country.

Beware the rise of the Fourth Reich…it is upon us.


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michaeltimmins
Comment posted February 6, 2010 @ 7:16 pm

In the Jan. 1990 issue of “The New Federalist” paper there was an article that explained the=at Jeb Bush purchased 90% of the Cuban bond market at $.10 on the dollar.Well (to me ) the ramifications of that article is startling ! George H. Bush was the then President at that time and Jeb Bush later became the Gov. of Fl. He also married a Cuban woman which later got caught for not paying 14K in duty taxes on their trip to Cuba. As we all know, George W. Bush was the President from 2000 to 2008 . My point is this, at the very least, the Bush family intermingled personal funds with Federal funds, Thus GITMO was born !!!


michaeltimmins
Comment posted February 7, 2010 @ 12:16 am

In the Jan. 1990 issue of “The New Federalist” paper there was an article that explained the=at Jeb Bush purchased 90% of the Cuban bond market at $.10 on the dollar.Well (to me ) the ramifications of that article is startling ! George H. Bush was the then President at that time and Jeb Bush later became the Gov. of Fl. He also married a Cuban woman which later got caught for not paying 14K in duty taxes on their trip to Cuba. As we all know, George W. Bush was the President from 2000 to 2008 . My point is this, at the very least, the Bush family intermingled personal funds with Federal funds, Thus GITMO was born !!!


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