NYT Endorses Torture Victims’ Lawsuits Against Bush Officials

The New York Times’ opinion page has long been a strong supporter of the rights of detainees at Guantanamo Bay, but the Times moved a step further today, to support detainees’ right to sue for monetary damages.

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.