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.

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.