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Supreme Court Shuts Door on Gitmo Torture Case


Detainees at Guantanamo Bay (The Toronto Star/ZUMApress.com)

The Supreme Court dealt a harsh blow on Monday to victims of abuse by U.S. officials during the “war on terror.” The court announced it would not review a federal appeals court ruling that dismissed a lawsuit by four British citizens who claim they were wrongly arrested, detained and mistreated by American officials at the U.S. detention facility at Guantanamo Bay, Cuba. The U.S. Circuit Court of Appeals in Washington, D.C., had ruled in April that government officials were entitled to “qualified immunity” from suit because it wasn’t clear at the time that abusing Guantanamo prisoners at was illegal.

[Law1] That appeals court decision in Rasul v. Rumsfeld effectively doomed many more cases that might have been brought by the more than 500 detainees who’ve been released from the Guantanamo prison, many of whom were subjected to so-called “enhanced interrogation techniques.” Those techniques include a broad range of abusive tactics, from weeks of sleep and food deprivation to stress positions, sexual humiliation, death threats and “waterboarding,” or simulated drowning. The four men who sued former Defense Secretary Donald Rumsfeld and other senior military officers for approving those techniques claim that between 2001 and 2004, when they were released, they were subjected to repeated beatings, prolonged sleep deprivation, extremes of hot and cold, forced nakedness, death threats, interrogations at gun point, menacing with unmuzzled dogs, and religious and racial harassment. The use of such techniques has been documented in Congressional reports, and Justice Department memos reveal that such tactics were explicitly approved by Bush administration lawyers.

The court’s decision not to review the Rasul case does not mean it agrees with the lower court’s decision. But it leaves the court of appeals’ ruling in effect and places a stumbling block in the path of Guantanamo detainees who claim they have been abused in U.S. custody and seek redress in court.

“When the court decides not to hear a case, it doesn’t say anything about the merits,” said Stephen Vladeck, professor at American University’s Washington College of Law and expert on national security and constitutional law. “But it leaves intact a fairly sweeping opinion by the D.C. Circuit — one that I think will be hard to overcome for any future plaintiffs suing based on abuse that allegedly occurred at Guantanamo.”

Shayana Kadidal, a senior attorney at the Center for Constitutional Rights and one of the lawyers who brought the Rasul case, agreed. “This decision is certainly bad news for the majority of people who could conceivably want to sue for damages at some point,” he said. In addition to monetary compensation, he said, many former Guantanamo detainees are seeking rulings to clears their names, because when they return to their home countries they’re often still suspected of terrorism and unable to secure employment.

At issue is an aspect of the D.C. Circuit’s opinion that found that government officials cannot be held legally responsible for any mistreatment because when the plaintiffs sued in 2004, “it wasn’t clearly established in the law that they were entitled not to be tortured or subjected to religious abuse,” said Kadidal. Since then, several Supreme Court cases have ruled that Guantanamo detainees have at least some constitutional rights. Which ones, however, remain unclear.

The D.C. Circuit’s ruling “reads out the good faith requirement in qualified immunity,” said Eric Lewis, a Washington, D.C., attorney who brought the Rasul case with CCR. “The whole notion of qualified immunity is that officials acting in good faith should have some protections.” But the law has long been clear that torture is not legal, said Lewis, citing the Convention Against Torture, among other laws. The Rasul decision, and the Supreme Court’s refusal to review it, he said, “makes it hard to know, what’s the law for next time?”

In fact, the D.C. Circuit’s latest Rasul opinion (the appeals court has ruled twice in this case) suggests in non-binding language that Guantanamo detainees have no constitutional rights other than the right of habeas corpus (the right to challenge the lawfulness of government detention), which the Supreme Court had already ruled applied to Guantanamo detainees. That finding cleared the way for the Obama administration, like the Bush administration before it, to argue that there is no constitutional right not to be tortured or otherwise abused in a U.S. prison abroad.

The high court today refused to weigh in on that issue. “I was hoping that the Supreme Court wouldn’t allow the last word on torture at Guantanamo to be that [detainees] have no rights and if they do, nobody knew at the time,” said Lewis. “That’s very disappointing.”

The D.C. Circuit opinion is not binding on courts in other parts of the country, however, which still could rule differently on some of these issues. A federal court in San Francisco, for example, ruled in June that Jose Padilla, an American citizen imprisoned as an “enemy combatant” without charge at a U.S. Naval brig in South Carolina, can sue former Justice Department lawyer John Yoo , whose legal opinions during the Bush administration approved the harsh and abusive treatment Padilla received. The court in that case denied Yoo’s claim to qualified immunity. That case is now on appeal in the Ninth Circuit.

Qualified immunity is hardly the only obstacle to holding government officials liable for torture and other abuse, however. Other cases, brought on behalf of former prisoners who were deemed “enemy combatants,” are barred by the Detainee Treatment Act of 2005, in which Congress stripped the courts of jurisdiction over any lawsuits complaining about the treatment of enemy combatants. (At least one case, Al-Zahrani v. Rumsfeld, is now challenging the constitutionality of that law.)

Then there’s the lawsuit brought by Canadian citizen Maher Arar, arrested while changing planes in New York and sent to Syria by U.S. officials, where he claims he was interrogated under torture. That case was recently dismissed by the Second Circuit Court of Appeals in New York on the grounds that “special factors” — such as potential implications for national security and foreign relations — counseled against allowing the case to proceed. (Arar could still seek review in the Supreme Court.)

Other cases have been dismissed on similar grounds. “The more structural, fundamental problem is where the cause of action comes from,” said Vladeck , referring to the basis for a victim’s right to sue. Although in some cases federal courts will imply a right to sue government officials for a constitutional violation, “the Supreme Court over the last 20 years has been incredibly hostile to damages suits against federal officers,” said Vladeck.

In its latest move, the Supreme Court’s refusal to consider whether government officials can reasonably claim they didn’t know it was unlawful to torture prisoners in U.S. custody reinforces the viability of that argument for the future.

The court’s inaction also effectively ends the four British plaintiffs’ quest for a remedy — and likely stymies similar actions from many more former Guantanamo prisoners who hoped for official acknowledgment or compensation for what they endured. “Nothing legally would stop the executive branch or Congress from conceding that mistakes were made and these guys are entitled to some kind of reparations,” said Vladeck. “But I cannot imagine that’s going to be very politically feasible.”

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