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.

Not only is the Obama administration arguing that government officials involved in developing policies that led to the torture and indefinite detention without charge of Guantanamo detainees should all be immune from suit because the detainees’ rights weren’t clear at the time, but the government is arguing that, based on a recent ruling by the U.S. Court of Appeals for the District of Columbia that “aliens held at Guantanamo do not have due process rights” — even now.

Moreover, the government urges the court to ban all lawsuits claiming constitutional violations by U.S. military officials.  Such lawsuits, the Justice Department argues, “would enmesh the courts in military, national security, and foreign affairs matters that are the exclusive province of the political branches.”

This appears to be yet another argument for sweeping executive authority, unfettered by the judiciary. Put another way, it’s an argument to allow the political branches of government — and in particular, the president — to be declared not accountable under the law.

In a more recent development, the Justice Department said it has “withdrawn” the enemy combatant definition for Guantanamo detainees.  But, it says it still has the right to hold them there indefinitely, so long as the government believes they provided “substantial” assistance to the Taliban or al-Qaeda.

I’ll have more on this soon.

The Al-Marri case Liptak writes about, and which I’ve been covering for TWI, presents probably the starkest instance of the Bush administration’s extraordinary claims of executive power: it insists that the president has the right to authorize the seizure and indefinite detention, without charge, of a lawful U.S. resident in a prison on American soil.

According to the Bush administration, Ali al-Marri — a father of five who was a 28-year-old masters student in Peoria, Ill. when he was arrested for credit card fraud, making false statements on a bank application and identity theft in December 2001 — is a dangerous agent of Al Qaeda. While those charges were pending, the Justice Department swooped in and decided that al-Marri could no longer speak to a lawyer because President George W. Bush deemed him an “enemy combatant.”  No proof of the charges were necessary, Bush administration lawyers insisted, nor did they need to justify in any way the government’s detention of al-Marri without charge or trial for the last seven years in a Navy brig in South Carolina.

Al-Marri’s lawyers insist otherwise, and the case is now set to be heard by the Supreme Court in the spring. But as I noted in a previous post, it’s not clear that the Obama administration will let the case get that far.  It seems hard to imagine that Obama’s Justice Department under Attorney General-designee Eric Holder, who has made strong statements criticizing Bush’s anti-terror policies in the past, would maintain the department’s current position that the president can indefinitely detain a lawful U.S. resident without charge on U.S. soil. Still, neither Obama nor Holder has ever specifically weighed in on this issue, as far as I can tell. (Liptak notes that Obama has come out against detaining U.S. citizens indefinitely, but al-Marri isn’t an American citizen.)

To avoid having to take a position either way, the new Justice Department could simply transfer al-Marri to a U.S. federal prison and charge him under American law, which would be the most reasonable course. That some of the evidence against him may have been tainted by torture, as Liptak points out, doesn’t mean it ought to be the basis for holding him forever without a trial — not only because that would be illegal, but because we know that evidence obtained under torture is notoriously unreliable.

In any event, one of the most important decisions the Obama administration will have to make rather quickly is whether and where to try detainees of the Bush administration’s “war on terror” — whether in the United States, Guantanamo or elsewhere. As I’ve noted before, the debate over whether to create a new national security court or some other venue instead of using the federal court system already in existence is causing considerable controversy and will have major political and legal consequences. Obama may well decide to test out the idea of shifting these cases to federal court by starting with the al-Marri case.

In the meantime, Liptak notes at the end of his piece one new development in the Rasul torture damages case.  (This is the case of the four British detainees held at Gitmo and allegedly tortured and humiliated there, until they were released after two years without charge. They are suing former Secretary of Defense Donald Rumsfeld, former Joint Chiefs Chairman Gen. Richard Myers and others.)  The court of appeals has pushed back the briefing schedule, so that it will be Obama, rather than Bush, who is forced to decide how to defend that case.

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.