In the same case, however, Turkmen v. Ashcroft, the court also sent back the plaintiffs’ claims that they were held in abusive conditions of confinement following the terrorist attacks on Sept. 11, 2001. They’ll have another chance to make those claims, but, significantly, will have to meet the Supreme Court’s new heightened pleading standards set out in Bell Atlantic v. Twombly and Ashcroft v. Iqbal.

While conceding that “Torture is illegal under federal law, and the United States government repudiates it”, even now the Solicitor General stops short of acknowledging that torture directed, approved and implemented by officials of the United States is so repugnant that it also violates fundamental rights; no less so when hidden from public view at Guantánamo Bay. Respondents appear willing to let the final word on torture and religious abuse at Guantánamo be that government officials can torture and abuse with impunity and will be immune from liability for doing so. Yet whether United States officials are free to engage in despicable acts in a place wholly controlled by the United States is the pre-eminent constitutional issue of our time, and it is squarely presented to this Court for decision in this case.

Rasul v. Rumsfeld, as I’ve explained before, is one of the first lawsuits brought by victims of the Bush administration’s torture and abuse policies. The plaintiffs claim they were in Afghanistan to do humanitarian relief work when they were captured by the Northern Alliance and turned over (or sold for bounty) to U.S. authorities. They were eventually shipped to Guantanamo Bay, where they were imprisoned in cages and, they claim, tortured and humiliated, forced to shave their beards and watch their Korans desecrated. All of these claims are backed up by the legal memos that have since been produced from the Department of Justice that authorized such techniques as part of “enhanced” interrogations. The men were returned home to the UK without charge in 2004.

Many other victims of the Bush administration’s abuse policies have been precluded from suing because in 2006, Congress passed the Military Commissions Act, which stripped the federal courts of jurisdiction over claims challenging the “detention, transfer, treatment, or conditions of confinement” of detainees who were considered “enemy combatants” by the U.S. military and detained abroad. (That provision of the law is being challenged in another lawsuit filed recently, which I describe here.) The plaintiffs in the Rasul case, however, were never even deemed “enemy combatants” by the U.S. military.

Still, the Obama administration is arguing, as it is in other cases, that it was not clear that foreigners picked up in Afghanistan and sent to Guantanamo Bay had a right not to be tortured by the U.S. government. But more than that, it’s arguing — as the lawyers in the Rasul case emphasize in the excerpt from their brief I quoted above — that there is no right under the Constitution not to be tortured at Guantanamo Bay, or at any offshore American-run prison.

As the Department of Justice recently wrote in another torture case: The “Fifth and Eighth Amendments do not extend to Guantánamo Bay detainees.”

In other words, it’s not just that former detainees can’t sue Bush administration officials for torture because the law wasn’t clear back in 2002 or 2003, but the Obama administration is arguing also that there is no fundamental right not to be tortured, and therefore any government official in the future could similarly claim to be immune from a lawsuit for torture.

Eric Lewis and the Center for Constitutional Rights, who represent the four British men in the Rasul case, are now pleading with the U.S. Supreme Court to say it isn’t so, and accept their appeal from a D.C. Circuit Court ruling that dismissed the case.

The government seeks “to leave the law unsettled and to pull a cloak of immunity, now and in the future, over government torturers,” they write in their brief.

It is essential that this Court lay down a strong and clear message that officially ordered torture is abhorrent and always a violation of fundamental rights. Without this Court’s guidance, the court of appeals’ studied indifference to the torture of Guantanamo detainees remains the final word on the issue and, indeed, could provide further cover for a claim of qualified immunity in the future in the unfortunate event that the specter of torture recurs.

The NSA authorized its warrantless wiretapping program shortly after September 11, 2001.

After defense lawyers representing Guantanamo detainees discovered they might have been wiretapped, CCR challenged the practice in a lawsuit in New York in May 2007. But the government refused to say whether it wiretapped the lawyers or not, citing national security concerns. The federal district court sided with the government, ruling that the NSA could refuse to either confirm or deny the existence of any related records because to do so “would reveal information about the NSA’s capabilities and activities.”

The case is Wilner v. NSA and it’s being argued before the Second Circuit Court of Appeals today.

As I noted earlier, the Center for Constitutional Rights and others has criticized the probe for its narrow focus on low-level interrogators who violated the CIA guidelines, approved by the Justice Department. (Although, as Spencer notes, the Justice Department’s announcement does not rule out any particular course of investigation or prosecution.) Many critics of the Bush administration’s tactics want a broader investigation of the lawyers and policymakers who sanctioned the torture and systematic abuse of detainees as well.

But the choice isn’t necessarily one or the other, say three former senior government interrogators.

In a letter sent on Friday to the chairmen of the House and Senate Judiciary and Intelligence Committees, former FBI official Jack Cloonan, and Defense Department interrogators Steven Kleinman and Matthew Alexander, wrote that “If the Attorney General takes this important step forward, it will reaffirm the enduring power of our system of checks and balances. … As former FBI interrogator, former military interrogator and career intelligence officer, we can attest that our law enforcement
agencies take seriously their obligation to uniformly enforce U.S. laws. To ignore evidence of criminal wrongdoing would incentivize future breaches of law.”

But it’s not enough, they continue.

Prosecutions of individuals who violated anti-torture statutes alone, however, will not prevent policy makers from making similar mistakes in the future. At the heart of the policy decisions buttressing interrogators’ use of torture and cruelty lay closed processes that have yet to be scrutinized with cool heads and wise counsel. Instead of putting in place the best policies for protecting American lives, policy makers ignored the advice of experienced interrogators, counterterrorism experts and respected military leaders who warned that using torture and cruelty would be ineffective and counter-productive. The path we chose came with heavy costs. Key allies, in some instances, refused to share needed intelligence, terrorists attacks increased world wide, and al Qaeda and likeminded groups recruited a new generation of Jihadists. A nonpartisan, independent commission with subpoena power should assess the deeply flawed policy making framework behind the decision to permit torture and cruelty. Our system of checks and balances is designed to produce sound policy decisions which advance our strategic interests and are in accordance with our core values of due process.

That system of checks and balances broke down during the Bush administration, and only an independent commission can assess how that happened and make recommendations to keep it from happening again, the interrogators wrote.

We ask you to urge President Obama to appoint a nonpartisan commission not to look backward but to provide recommendations for the future. Reviewing our policies and actions concerning detention and treatment of detainees after 9/11 will strengthen our system of checks and balances so that when faced with the next challenge, we get it right.

Adm. Patrick Walsh reported that based on more than 100 interviews over 13 days, inspections of all the camps at the prison and observation of daily operations, “it was apparent that the chain of command responsible for the detention mission at Guantanamo consistently seeks to go beyond the minimum standard in complying with Common Article 3,” he said. “We found that the chain of command endeavors to enhance conditions in a manner as humane as possible, consistent with security concerns.”

Advocates for the detainees such as the Center for Constitutional Rights, however, were not convinced.

“The men at Guantanamo are deteriorating at a rapid rate due to the harsh conditions that continue to this day, despite a few cosmetic changes to their routines,” said CCR staff attorney Pardiss Kebriaei in a statement released yesterday. “They are caught in a vicious cycle where their isolation causes psychological damage, which causes them to act out, which brings more abuse and keeps them in isolation. If they are going to be there another year or even another day, this has to end.” The advocates have released their own report on conditions at the prison.

Of course, both things could be true. Men who are abducted, beaten, hooded, flown across the world and thrown in a rudimentary cage-like prison, subjected to “extreme” interrogations and held for up to seven years without charge aren’t likely to be all that cooperative after a while. Their captors may well believe that isolating the men will ensure security, even if it contributes to destroying the prisoners’ mental health. And whether isolation, force-feeding someone who’s trying to starve himself to death, or not letting a prisoner out in the sunshine violates the Geneva Conventions’ ban on “humiliating and degrading treatment” is arguable.

But that seems to be missing the point. The controversy over conditions at Guantanamo really raises two key questions.

First, if the Pentagon is so proud of the conditions at Guantanamo, why not let human rights advocates and journalists in to see it, as they’ve requested? So far, access has been extremely limited, and the lawyers have to count on descriptions of conditions and treatment from their clients, who may have an incentive to exaggerate the deficiencies and abuses, or who, after all this time in prison for crimes they may never have committed, may have truly lost their minds. Allowing independent human rights advocates and journalists to see the prison and interview detainees — and maybe even installing an independent human rights monitor at Guantanamo to observe and make recommendation on how to improve it until it’s closed — could go a long way toward both making the prison a more humane and constructive place, and would give the Obama administration some credibility on an issue that it claims to care about.

Second, the administration needs to move quickly to send more of those prisoners home if they don’t have evidence to warrant holding them. Yesterday, the Pentagon released Binyam Mohamed, the Ethiopian-born U.K. resident picked up in Pakistan and flown to Morrocco, where he says he was interrogated under torture before being sent to a CIA prison in Afghanistan and then to Gitmo. Mohamed was held there for more than four years because the Bush administration alleged he was plotting with al Qaeda to set off bombs in the United States. The charges against him, however, were eventually dropped. Almost seven years after his capture, he was allowed to return home.

Compared to some of the other Gitmo prisoners, Mohamed is lucky. Because he was from the United Kingdom, the United States was able to negotiate his release. Many more are still being held, even if the United States has little to no evidence against them — sometimes even after it is determined they’ve done nothing wrong. Just last week, a the U.S. Court of Appeals for the District of Columbia ruled that a federal judge had no authority to release into the United States the 17 Chinese Muslim Uighurs who are stuck at Guantanamo and have never been charged, but can’t return home for fear of persecution by Chinese authorities. Only the executive has the authority to release them into the United States, the court ruled.

The fact that innocent men are still being held in prison weeks after a new administration has taken over with the promise to restore the rule of law is astonishing. Sure, President Obama has a crashing economy to worry about  among other things. But as Obama put it himself on the campaign trail, when Sen. John McCain (R-Ariz.) threatened to cancel a debate to attend congressional negotiations on a bank bailout bill: “Presidents are going to have to deal with more than one thing at a time.”

Fortunately, the president has a large staff of highly capable people to help him out.  It’s time for Obama to make good on his promises.

But what is the “state secrets” privilege anyway?

The Center for Constitutional Rights has a useful primer on the privilege on its Website, explaining that it’s a privilege that “allows the head of an executive department to REFUSE to produce evidence in a court case on the grounds that the evidence is secret information that would harm national security or foreign relation interests if disclosed.

Here’s CCR’s view on why that’s a bad thing:

The state secrets privilege undermines the very idea of an independent judiciary; contradicts the core idea of judicial review, which is independent judges making independent evaluations of all of the facts; and essentially allows the executive branch to dictate to the federal courts what cases they can and can’t hear.

While that might seem a little one-sided, in truth, that’s pretty much how it worked in the case today.  Although the case was filed against Jeppesen Dataplan, the Boeing subsidiary that helped arrange the CIA’s rendition flights, the government intervened in the case and argued that the “state secrets” privilege required the court to dismiss it.

Why?

Normally, a judge reviews sensitive evidence that comes up in a case and allows it to be filed under seal (out of public sight) if it’s classified or raises issues of national security.  But the government — first the Bush administration, and now the Obama administration — is arguing that only the executive can decide what information should be released to the public.  And in this case, it said, ANY information revealed about the CIA’s extraordinary rendition plan would endanger national security.  Never mind that former CIA director George Tenet and even former President George W. Bush had spoken publicly about the program and defended it.

So you can understand CCR’s criticism:  in this case, it certainly does seem to undermine the very notion of an independent judiciary objectively applying the law to the facts. And it suggests that, much like its predecessor, the Obama administration is endorsing a broad view not only state secrets, but of executive power itself.

As I reported earlier, the 34-year-old computer consultant of Syrian descent was apprehended by U.S. authorities in 2002 while he was changing planes at New York’s John F. Kennedy International Airport, on his way home to Canada after visiting relatives in Tunisia.

After a harsh interrogation without access to counsel in New York, he was flown to Syria against his will, where he was kept in a tiny underground prison cell and tortured until he eventually “confessed” to training for terrorism in Afghanistan; in fact, he’d never even been there.

For those with a strong stomach, here’s the federal district court’s description of Arar’s early days in Syrian detention, which he claims was coordinated with US authorities:

During his first twelve days in Syrian detention, Arar was interrogated for eighteen hours per day and was physically and psychologically tortured. He was beaten on his palms, hips and lower back with a two-inch-thick electric cable. His captors also used their fists to beat him
on his stomach, face and back of his neck. He was subjected to excruciating pain and pleaded with his captors to stop, but they would not. He was placed in a room where he could hear the screams of other detainees being tortured and was told that he, too, would be placed in a
spine-breaking [*11] “chair,” hung upside down in a “tire” for beatings and subjected to electric shocks. To lessen his exposure to the torture, Arar falsely confessed, among other things, to having trained with terrorists in Afghanistan, even though he had never been to Afghanistan
and had never been involved in terrorist activity.

Arar was eventually deemed innocent and returned home to Canada in 2003, where the Canadian government confirmed that he’d done nothing wrong and apologized for its role in his arrest.

With the help of the Center for Constitutional Rights and Georgetown law professor David Cole, in 2004 Arar sued American officials in a U.S. federal court for sending him to Syria to be tortured.  But his case was dismissed on the grounds that an investigation might reveal state secrets and harm national security.  The court also ruled that, as a foreigner deported by immigration authorities, he had no right to challenge his treatment by the United States.

Although a three-judge panel of the Second Circuit affirmed the district court’s ruling, holding that Arar has no right to sue federal officials no matter what was done to him, the full court  of appeals in August made the highly unusual decision to re-hear the case.  All 12 active judges of the court are scheduled to hear the arguments from both sides at 3 p.m. in New York.  The argument will stream live on C-Span.org.

For more on the Arar case and the US government’s program of extraordinary rendition, check out Jane Mayer’s excellent piece on the subject in the New Yorker.