Can Jawad Overcome Hurdles of Previous Torture Lawsuits?

The news that Mohammed Jawad plans to sue the U.S. government for his unlawful detention and torture raises the question of whether he can get beyond the hurdles so many other torture victims have faced in similar lawsuits.

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.