Rummy Won’t Be Doing Time

By William Fisher

In the wake of the U.S. Supreme Court’s refusal yesterday to review a lower court’s dismissal of a case brought by four British former Guantanamo prisoners against former Defense Secretary Donald Rumsfeld, the detainees’ lawyers charged today that America’s highest court evidently believes that “torture and religious humiliation are permissible tools for a government to use.”

The U.S. Circuit Court of Appeals in Washington, D.C., had ruled that government officials were immune from suit because at that time it was unclear whether abusing prisoners at Guantanamo was illegal.

Channeling their predecessors in the Bush Administration, Obama Department of Justice lawyers argued in this case that there is no constitutional right not to be tortured or otherwise abused in a U.S. prison abroad.

The Obama administration had asked the court not to hear the case. By agreeing, the Court let stand an earlier opinion by the D.C. Circuit Court, which found that the Religious Freedom Restoration Act -- a statute that applies by its terms to all “persons” -- did not apply to detainees at Guantanamo, effectively ruling that the detainees are not persons at all for purposes of U.S. law.

The lower court also dismissed the detainees’ claims under the Alien Tort Statute and the Geneva Conventions, finding defendants immune on the basis that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.”

Finally, the circuit court found that, even if torture and religious abuse were illegal, defendants were immune under the Constitution because they could not have reasonably known that detainees at Guantanamo had any Constitutional rights.

The circuit court ruled that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants."

That opinion was written by Judge Karen Lecraft Henderson, who was appointed to the federal circuit court by President Ronald Reagan in 1986 and to the Appeals Court in 1990 by President George H.W. Bush.

The British detainees spent more than two years in Guantanamo and were repatriated to the U.K. in 2004 with no charges ever having been filed against them.

Eric Lewis, lead attorney for the detainees, said, “It is an awful day for the rule of law and common decency when the Supreme Court lets stand such an inhuman decision. The final word on whether these men had a right not to be tortured or a right to practice their religion free from abuse is that they did not.”

He said, “Future prospective torturers can now draw comfort from this decision. The lower court found that torture is all in a days’ work for the Secretary of Defense and senior generals. That violates the President’s stated policy, our treaty obligations and universal legal norms. Yet the Obama administration, in its rush to protect executive power, lost its moral compass and persuaded the Supreme Court to avoid a central moral challenge. Today our standing in the world has suffered a further great loss.”

Center for Constitutional Rights Senior Attorney Shayana Kadidal, co-counsel on the case, told IPS, “In many ways the opinion the Supreme Court left standing today is worse when one gets past the bottom line – no accountability for torture and religious abuse – and digs into the legal reasoning. One set of claims are dismissed because torture is said to be a foreseeable consequence of military detention. (How will the parents of our troops captured in future foreign wars react to that?)”

“Another set of claims are dismissed because Guantanamo detainees are not ‘persons’ within the scope of the Religious Freedom Restoration Act (an argument that was too close to Dred Scott v. Sanford for one of the judges on the court of appeals to swallow). And the rest are dismissed on the premise that, somehow, federal officials responsible for planning and implementing torture and religious abuse might have looked to the caselaw on the subject and decided it wasn’t clear that the detainees had the right to not be strapped in medieval stress positions, or that it was OK to throw their Korans into a toilet bucket,” he said.

He added, “The way the case was defended is in some ways emblematic of the Obama administration’s waffling on national security issues. On the one hand they recognize that torture is reprehensible, doesn’t work, and is universally condemned; on the other they don’t want to prosecute people who ordered, facilitated, or carried it out, and are actively seeking to eliminate other mechanisms for accountability like this case – anything that might lead to a court saying crimes were committed and innocent people were brutally abused. In their briefing in this case, they stopped short of arguing that it should be the law that Guantanamo detainees have no constitutional rights, but were more than happy to point several cases they claim decided as much.”

He said they are “willing to use opinions they think work in their favor even where they are unwilling to defend those decisions on principle.” He described this as “an amalgam of the worst features of the last two presidents.”
The Dred Scott case referred to by CCR lawyer Kadidal was a decision by the United States Supreme Court in 1857. It ruled that people of African descent imported into the United States and held as slaves, or their descendants — whether or not they were slaves — were not protected by the Constitution and could never be citizens of the United States.

The four former detainees – Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed, and Jamal Al-Harith –filed their case in 2004 seeking damages from former Secretary of Defense Donald Rumsfeld and senior American military officers for violations of their constitutional rights and of the Religious Freedom Restoration Act, which prohibits infringement of religion by the U.S. government against any person.

Their claims were dismissed in 2008 by the Court of Appeals for the District of Columbia Circuit when that court held that detainees have no rights under the Constitution and do not count as “persons” for purposes of the Religious Freedom Restoration Act.

Last year, the Supreme Court granted the men’s first petition, vacated the Court of Appeals decision and ordered the D.C. Circuit to reconsider its ruling in light of the Supreme Court’s historic decision in Boumediene v. Bush, which held that Guantánamo is de facto U.S. territory and that detainees have a Constitutional right to habeas corpus.

On remand, the D.C. Circuit reiterated its view that the Constitution does not prohibit torture of detainees at Guantánamo and that detainees still are not “persons” protected from religious abuse. Finally, the Court of Appeals held that, in any event, the government officials involved are immune from liability because the right not to be tortured was not clearly established.

A second petition filed with the Court in August 2009 pointed out that the Court of Appeals decision stands in conflict with all of the Supreme Court’s recent precedent on Guantánamo and attacked the notion that the prohibitions against torture and religious abuse were not clearly established in 2002 when the petitioners were imprisoned.