Supreme Court refuses case on Guantanamo detainees and torture

The US Supreme Court declined on Monday to take up a major case examining whether Guantánamo detainees enjoy a constitutional right not to be subject to torture and other harsh tactics by government officials.

The appeal, filed on behalf of four former prisoners who were returned home to Britain in 2004, sought to gain a clear statement from America’s highest court on the scope of legal protections for those held at the US detention camp in Guantánamo Bay, Cuba.

The four men, Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed, and Jamal Al-Harith, were seeking compensatory damages and a court declaration that US officials violated American and international law – including prohibitions against torture.

“Whether United States officials are free to engage in despicable acts [at Guantánamo] in a place wholly controlled by the United States is the pre-eminent constitutional issue of our time,” wrote Washington lawyer Eric Lewis in his brief on behalf of the four men and the Center for Constitutional Rights.

“It is essential that this court lay down a strong and clear message that officially ordered torture is abhorrent and always a violation of fundamental rights,” Mr. Lewis said.

The high court rejected the appeal in a one-line order without comment. The action ends years of litigation on behalf of the former detainees. It lets stand an earlier ruling by the US Circuit Court of Appeals for the District of Columbia dismissing the lawsuit.

The Obama administration opposed the litigation and had urged the high court to reject the appeal. The government argued that “special factors” related to military protection of national security preclude judicial involvement in allowing such litigation to move forward in “sensitive circumstances such as these.”

The Obama administration also argued that US officials who approved or engaged in controversial detention and interrogation tactics at Guantánamo are entitled to immunity from lawsuits.

To overcome such immunity, the plaintiffs must prove that any violated constitutional rights were “clearly established” at the time of the alleged violations.

“At the time of petitioners’ detention (between 2002 and March 2004), it was not clearly established that the Fifth and Eighth Amendments protected aliens detained abroad by the military,” US Solicitor General Elena Kagan said in her brief. Thus, US officials are entitled to immunity, she said.

The Fifth Amendment forbids the US government from depriving any person of life, liberty, or property without due process of law. The Eighth Amendment bars the government from engaging in cruel and unusual punishment.

The Bush administration decided in 2002 to locate its terrorism interrogation center on the US Naval Base at Guantánamo Bay, Cuba, in part because government lawyers believed the overseas location would be beyond the reach of US constitutional protections and the oversight of federal judges.

Existing legal precedents supported this view, but the US Supreme Court, in a series of rulings from 2004 to 2008, began to establish, piece by piece, an expanded level of legal protection for detainees at Guantánamo.

In 2008, the Supreme Court declared for the first time that Guantánamo detainees had a constitutionally-based right to file habeas corpus challenges to the legality of their open-ended detention. But the justices left it to the lower courts to define that right.

Lawyers for the four men were hopeful that the 2008 ruling in a case called Boumediene v. Bush would clear the way for their clients to prevail in their lawsuit.

But the federal appeals court in Washington ruled against them by finding that government officials who played a role in their treatment were protected by qualified immunity. In addition, the appeals court dismissed the case on the basis of special factors of national security.

“There are no special factors here,” Lewis countered in his brief. He said such factors have been cited in the past only in cases in which other remedies are available to plaintiffs. No similar remedies are available to the four former detainees.

Lewis warned of the danger of allowing the appeals court decision to stand. “Respondents appear willing to let the final word on torture and religious abuse at Guantanamo be that government officials can torture and abuse with impunity and will be immune from liability for doing so,” he wrote.

The four plaintiffs in the case, Rasul v. Myers, were captured in Afghanistan in 2001 and transferred to the detention camp at Guantánamo in early 2002. All four were released in March 2004.

Three of the men, from Tipton, England, were the subject of a docu-drama of their ordeal in Afghanistan and Guantánamo called “The Road to Guantanamo.” It contended that the so-called Tipton Three were innocents who stumbled into Afghanistan after the 9/11 attacks and were falsely accused of being Al Qaeda supporters.

In their lawsuit, the four men charged that they’d been imprisoned without charge for two years at Guantánamo. The said they were subjected to beatings, sleep deprivation, forced nakedness, extreme hot and cold temperatures, death threats, interrogations at gunpoint, and threatened with unmuzzled dogs. They claimed officials engaged in anti-Muslim discrimination in part by desecrating personal copies of the Koran.

“This case cries out for review by this court,” Lewis told the justices in his brief. “There can be no ambiguity or confusion about the right not to be tortured by US government officials.”

He added, “[The government seeks] to leave the law unsettled and to pull a cloak of immunity, now and in the future, over government torturers.”