Federal Judiciary

Detainee torture issue taken to Court

By Akin Gump Supreme Court Practice Group

In the first move to put claims of torture of Guantanamo detainees before the Supreme Court, lawyers for four Britons formerly held at the Navy prison in Cuba on Friday asked the Justices to overturn a federal appeals court ruling that they had no right to sue Pentagon officials and military officers over the issue.  (The petition in Rasul, et al., v. Myers, et al., can be found here.  The docket number has not yet been assigned.)

The case would give the Justices a chance to rule on whether Guantanamo detainees have any rights under the Constitution beyond the right to challenge their detention in habeas cases, and whether they have any rights under U.S. laws.

The D.C. Circuit Court last Jan. 11 rejected all of the claims of abuse and arbitrary imprisonment, thus scuttling the case.  With no dissents noted, the Circuit Court refused on March 26 to rehear the case en banc.  The petition in the Supreme Court was filed after attorneys obtained an extension to do so by Friday.  (A post on this blog discussing the Circuit Court panel decision can be read here.  The Circuit Court panel’s decision can be found here.)

The new appeal asks the Justices to rule on three issues:

1. Do the former detainees have a right to sue for “religious abuse and humilation” under the Religious Freedom Restoration Act.? (The Circuit Court found the detainees were not “persons” covered by the Act.)

2. Does the Constitution provide U.S. captives with a constitutional right not to be tortured – or, if there is such a right, was it not established at the time of the mistreatment claimed in this case and thus U.S. offiicials have immunity to lawsuit? (The Circuit Court ruled that detainees have no constitutional rights.)

3. Did the Defense Secretary and senior military officers have the authority to order torture, as coming within the range of their official duties? (The Circuit Court said that any such mistreatment was incidental to officials’ duty in ordering that detainees be interrogated.)

The appeal notes that the Circuit Court had found that “Guantanamo detainees lack constitutioinal rights because they are aliens without property or presence in the United States.”  That conclusion, the petition points out, was overturned by the Supreme Court on June 12 in Boumediene v. Bush, recognizing a constitutional right of habeas.

The petition asserts: “The Court of Appeals’ extensive and uncritical reliance on its own decision in Boumediene is all the more remarkable given that the instant case was argued, and the Court of Appeals’ decision was rendered, long after this Court granted the petition for writ of certiorari in Boumediene and after the Court of Appeals withdrew its mandate in Boumediene, signaling the likelihood that the decision would be amended, overturned or withdrawn. Indeed, the Court of Appeals entirely ignored the fact that it had withdrawn its mandate in Boumediene.”

Referring to Boumediene and to earlier Supreme Court rulings allowing detainees to challenge their confinement, the petition argues that “this case presents the opportunity to recognize and enforce rights that are at least as basic and essential to human autonomy — the right to worship and the right not to be tortured….This case presents the question of whether senior officials of the United States Government can be held accoutable pursuant to RFRA, the Constitution and customary international law for ordering the religious humiliation and torture of Guantanamo detainees.” 

 The petition was filed for the four Britains — Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith.  Rasul is the same individual who, in 2004, won the right under federal statute to file a habeas challenge in U.S. courts.  (The Boumediene case this past June based such a right on the Constitution itself.)

The four Britons were held at Guantanamo from January 2002 — among the first prisoners to arrive there — until March 2004. They were then released, and flown home to England, the petition notes. It adds that they “never took up arsms against the United States, never received any military training, and have never been members of any terrorist group.”

Three of the four were captured in Afghanisan, the petition says, after having gone there to assist in providing relief.  The fourth was captured in Pakistan.  Their appeal says they “were held and interrogated under appaling conditions in Afghanistan by the United States before they were transported to Guantanamo, where they were systematically tortured and abused pursuant to directives from [former Defense Secretary Donald] Rumsfeld and the military chain of command.”

Full post as published by SCOTUSBLOG on August 22, 2008 (boomark / email).