Supreme Court Remands Gitmo Torture Damages Case

The US Supreme Court this morning granted certiorari in the case of Rasul v. Rumsfeld, Myers, et al., the first case in which plaintiffs who claim they were illegally detained, tortured and humiliated at Guantanamo Bay before they were released without charge have claimed civil damages against US officials. Instead of reviewing the case itself, though, it vacated the DC Court of Appeals decision and remanded the case to the court for further review in light of the Supreme Court’s decision last June in *Boumediene v. Bush.*The DC Circuit had dismissed the case last January, saying the US officials were immune from suit for torture and that the three British citizens who filed the case are not “persons” protected by the relevant US law.

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.