Torture on the JobTorture on the Job | The Washington Independent
Can torture really fall within the scope of employment for a senior government official?
The D.C. Circuit Court of Appeals thinks it can. Now the U.S. Supreme Court will get to decide if it agrees
It’s a curious idea to consider torture part of one’s job description — though it’s unequivocally, universally, against the law. Torture by U.S. government officials is against the statutory law of the United States; the U.S. Constitution, which prohibits “cruel and unusual punishment,” and international law, including the Geneva Conventions and the U.N. Convention Against Torture.
It’s not like there’s a debate over the interpretation of these laws. Or even that the court is questioning whether U.S. officials really did authorize torture — the evidence is overwhelming that they did
Yet somehow, when British victims of torture at Guantanamo Bay — who were eventually released because they’d done nothing wrong — sued U.S. officials for directing their inhumane treatment, the federal court dismissed their case. The court reasoned that military commanders like former Defense Sec. Donald Rumsfeld are protected from lawsuits because any torture of suspects was done in the interest of protecting the country — and that was their job.
The court went on to say that they also can’t be held legally responsible because at the time, they might not have known that prisoners at Guantanamo Bay, innocent or not, would have any right not to be tortured – or at least not a right they could ever enforce in court
On Friday, Michael Ratner and Shayana Kadidal of the Center for Constitutional Rights, and Eric Lewis of the law firm Baach Robinson & Lewis, filed a petition with the U.S. Supreme Court asking it to reverse that ruling
“The Court of Appeals’ sweeping conclusion,” they wrote, “that Guantanamo detainees have no constitutional rights and therefore can be tortured consistent with the Constitution is abhorrent in a nation of laws and is in direct conflict with this court’s precedents.”
“The Court of Appeals’ further conclusion,” their petition continued, “that officers who were aware of the illegality of their conduct under numerous sources of law can nevertheless avoid liability for their actions through a calculated reliance on purported constitutional ambiguity is equally pernicious and contrary to this court’s longstanding doctrine that qualified immunity does not protect defendants who engage in deliberately unlawful conduct.
“Finally, the Court of Appeals’ conclusion that torture and abuse are within the scope of employment and therefore respondents are immune from liability for their conduct is fundamentally at odds with the universal principle that torture is *ultra vires *[beyond any authority conferred by law] under all circumstances.
The Supreme Court doesn’t have to hear the case, of course. Though it’s been repeatedly willing to admit that Guantanamo detainees do have rights — rulings that fly in the face of the Bush administration — it’s not clear what the justices will do when it comes to victims trying to hold U.S. officials accountable. That would seem to be the logical next step, however.
As Lewis noted when he sent me a copy of the petition
“Fingers crossed that the S. Ct will be uncomfortable with leaving alone a decision saying GTMO detainees are not persons and have no right not to be tortured.”