Previous cases have been dismissed on grounds that government officials had “qualified immunity” for their actions — meaning they’re immune from suit if it wasn’t clearly established that what they did was illegal — or based on the government’s claim that the case would expose “state secrets” and endanger national security.

Will the case of Mohammed Jawad, arrested around age 12, tortured and held in U.S. custody in Afghanistan and then Guantanamo Bay for the next six and a half years with no reliable evidence he’d committed a crime, be any different?

Eric Montalvo, one of Jawad’s military defense lawyers who recently entered private practice and paid his own way to accompany Jawad back home earlier this week, hopes he’ll have a better case. The fact that a U.S. military judge confirmed that Jawad was tortured by Afghan authorities, then interrogated under a range of abusive and threatening conditions by U.S. authorities, could help.

“The short answer is, factually we have a different set up given that we have judicial findings of mistreatment,” Montalvo wrote to me yesterday in an email, since he’s not back in the United States yet. “I will have to figure out which way to go to be most successful,” he added, saying it will take some time to develop and file the case.

In the meantime, the Supreme Court could weigh in on the issues. Earlier this week lawyers representing four British former detainees who claim they were tortured at CIA black sites filed a petition asking the court to review dismissal of their clients’ cases. In that case, Rasul v. Myers, the Court of Appeals in the D.C. Circuit dismissed the men’s claims, ruling that it wasn’t clear at the time that the U.S. wasn’t allowed to torture detainees. The court also ruled that they’re not “persons” within the meaning of the Religious Freedom Restoration Act, so their claims that they were denied the right to practice their religion in custody don’t count. The court interpreted that federal law to apply only to U.S. citizens or lawful U.S. residents.

The men are British citizens who were abducted by U.S. officials and imprisoned from 2002 to 2004 at the U.S.-run detention center at Guantanamo Bay. None was a member of any sort of terrorist group or ever charged with a crime.

Former Secretary of Defense Donald Rumsfeld and the ten other senior military officials named in the lawsuit have immunity, the court ruled, because “[n]o reasonable government official would have been on notice that plaintiffs had any Fifth Amendment or Eighth Amendment rights.” Although the  Supreme Court ruled last June in Boumediene v. Bush that detainees at Guantanamo have the right to habeas corpus, the court today ruled that “At the time of their detention, neither the Supreme Court nor this court had ever held that aliens captured on foreign soil and detained beyond sovereign U.S. territory had any constitutional rights…”

The case, Rasul v. Myers, which I’ve written about here and here, was on remand from the Supreme Court, which had instructed the D.C. Circuit to reconsider its previous ruling dismissing the case in light of the high court’s decision in Boumediene. To the dismay of many civil rights advocates, the Obama administration, like the Bush administration before it, insisted that even if the men were tortured, the case should be dismissed because U.S. government officials could not have known at the time that they were violating established rights, so they’re entitled to immunity.

The D.C. district court that initially heard this case had similarly dismissed the constitutional claims, but ruled that the four former prisoners had rights to sue under the Religious Freedom Restoration Act, because they hadn’t been allowed to practice their religion and their Korans had been desecrated. The appellate court today reaffirmed its earlier decision that because the men are “aliens” and not residents of the United States, they are not “persons” entitled to protection under the statute.

Reached this afternoon, Katherine Toomey, a lawyer at the firm Baach Robinson & Lewis, which is representing the four British men along with the Center for Constitutional Rights, said that the lawyers are now considering whether to ask for a re-hearing by the full court of appeals, or to seek review again in the Supreme Court.

Writing about the case of Rasul v. Myers, in which four British former Gitmo detainees are suing for allegedly being tortured and denied their religious rights while imprisoned by US authorities — the Times bravely writes that “Part of the process of undoing that ugly legacy [of detainee abuse] is making clear that detainees have the right to sue if they were tortured or otherwise abused.”

Doing that could change everything. Imagine if hundreds of even thousands of victims around the world sued the US government for damages. How much do you get for being tortured? for indefinite detention? for religious abuse and humiliation? Canada paid Maher Arar — the Canadian sent to Syria to be tortured — $11 million in compensation. Will the US be liable for many billions?

So far, there have been surprisingly few civil cases brought against the US by torture victims, in part because suing is costly, the outcome is uncertain and appeals can go on for years. The Rasul case was made possible by the pro bono representation of the Washington law firm Baach Robinson & Lewis, working with the Center for Constitutional Rights, and hoping to establish exactly the precedent the Times is advocating for now.

The DC Circuit, instructed to reconsider its ruling in light of Boumediene v. Bush, which made clear that detainees imprisoned by the US in Cuba do have rights under the US Constitution, could now decide that US officials are not immune from lawsuits brought by torture victims, because the right not to be tortured has long been well established in both US and international law. It could also decide that the 750 or so men who’ve been held at Gitmo are indeed “persons” protected under the Religious Freedom Restoration Act, something the court oddly denied before. And there are thousands of others held by US authorities abroad whose rights under the US Constitution have yet to be decided.

All this could — and perhaps should — open the door to a flood of lawsuits by alleged victims of torture, physical and psychological abuse and religious deprivation, as I’ve explained before. As in the Arar case, there are strong arguments for why victims of torture at the hands of the US government deserve a remedy.

But should torture victims really have to pay a lawyer to take their case to court and wait years for a result? And is the US willing to pay billions of dollars in damages?

The better approach might be one suggested to me by Carolyn Patty Blum, a consultant for the International Center for Transitional Justice: have an investigatory commission set up both to investigate what crimes were committed and compensate their victims. That’s a common role for Truth and Reconciliation Commissions that have been created or considered around the world, and while it wouldn’t and shouldn’t preclude prosecution of criminals, it could make compensating the victims far easier for everyone involved.

The three British plaintiffs involved in this case — Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed — claim they traveled to Afghanistan in October 2001 to offer humanitarian relief to civilians displaced by the war. In late November, they were kidnapped by Rashid Dostum, the Uzbeki warlord and leader of the U.S.-supported Northern Alliance. He turned them over to U.S. custody – apparently for bounty money that American officials were paying for suspected terrorists. In December, without any independent evidence that the men had engaged in hostilities against the United States, U.S. officials sent them to Guantanamo Bay. Over the next two years, they claim, they were imprisoned in cages, tortured and humiliated, forced to watch their korans decimated and have their beards shaved, until they were returned to Britain in 2004. None was ever charged with a crime.

Seven months later, the three men, plus another British citizen picked up in Afghanistan and imprisoned at Gitmo, sued former Defense Sec. Donald Rumsfeld and a host of other military commanders for authorizing their torture and violating their religious rights.

In January, the federal appeals court decided that even if all their claims are true, the US officials are immune from suit because, even though torture, physical abuse and humiliation of prisoners violate domestic and international law, the officials were doing all this “within the scope of their employment” and so aren’t personally responsible. They were also immune, the court added, because it wasn’t clear when they authorized the torture that detainees at Guantanamo Bay had rights. As for the men’s religious rights, the court decided that as foreigners, they were not “persons” entitled to the protection of the Religious Freedom Restoration Act.

As I’ve written before, this case could be the tip of the iceberg — given how many hundreds of people were detained at Gitmo and then released. (Tens of thousands more have been held in Iraq and Afghanistan, at prisons like Abu Ghraib and Bagram — and some of those could try to bring claims as well.)

And as I noted last week, it’s yet another reason for the new administration to quickly appoint an investigatory commission, with the authority not only to prosecute those who committed and authorized crimes, but to compensate the victims.