Ruling in a case of four Britons who formerly were detainees at Guantanamo Bay, Cuba, the D.C. Circuit Court decided Friday that the prisoners have no right to sue top Pentagon officials and military officers for allegedly torturing them and defiling their religious beliefs while they were held at the military prison. The Court applied several different legal theories in rejecting all of the claims of abuse and arbitrary imprisonment, but the end result was that there was nothing left of the detainees’ legal challenge.

In a second ruling Friday affecting individuals captured during the “war on terrorism,” the Circuit Court decided that the Pentagon has no legal duty to release to the public the opinions or advice that outsiders gave to the government on the creation of “military commissions” to try war crimes charges against detainees.

Both of the rulings — Rasul, et al., v. Myers, et al. (Circuit docket 06-5209) rejecting the torture and abuse claims, and National Institute of Military Justice v. Department of Defense (06-5242) — can be found on the opinions page of the D.C. Circuit under Friday’s date.

In what appears to be the first federal appeals court decision on the legality of harsh interrogation techniques used by U.S. agents on terrorism suspects, the Circuit Court ruled that torture and abuse that was used while individuals were in detention in a military prison as part of interrogations to gather intelligence or information were “the type of conduct the defendants were employed to engage in….The alleged tortious conduct was incidental to the defendants’ legitimate employment duties” — that is, running a military prison and conducting interrogations there.

“It was foreseeable that conduct that would ordinarily be indisputably ‘seriously criminal’ would be implemented by military officials responsible for detaining and interrogating suspected enemy combatants,” Circuit Judge Karen LeCraft Henderson wrote in the Court’s main opinion, joined in by Circuit Judge A. Raymond Randolph and in most parts as well as the result by Circuit Judge Janice Rogers Brown.

Because such conduct was within the range of duties of top officials who authorized interrogation techniques and officers who carried out those instructions, the Circuit Court said, the detainees could not pursue their challenges in court because they did not first pursue them in administrative proceedings at the Pentagon.

In the one part of the decision with which Judge Brown partially disagreed, the Court ruled that the detainees were not covered by a federal law that protects all “persons” against government action that intrudes on their religious freedom. The four Britons held for two years at Guantanamo had argued that actions by guards at Guantanamo — forced shaving of beards, denying copies of the Koran and prayer mats, throwing a copy of the Koran into a toilet bucket, and harassing prisoners while they were practicing their religion — violated their rights under the Religious Freedom Restoration Act. The Circuit Court majority ruled that the Act did not apply to non-resident aliens at Guantanamo.

Judge Henderson wrote that the Act was to be interpreted by analyzing the constitutional meaning of its language, because it was designed to restore constitutional rights to the free exercise of religion. Since it had ruled last year, in other detainee cases, that those at Guantanamo have no constitutional rights, they are not covered by RFRA because they are not “persons” in the constitutional sense, she wrote.  (The ruling that the detainees have no constitutional rights is now under review by the Supreme Court in two pending cases on detainees’ legal rights, Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196).

The four Britons are Shafiq Rasul, Asif Iqbal, Rhuhel Ahmedand Jamal Al-Harith. They sued former Defense Secretary Donald Rumsfeld, top generals, and several Army colonels or lieutenant colonels. They contended that Secretary Rumsfeld had approved harsh interrogation techniques for Guantanamo prisoners, leading “systematic and repeated” torture at the military prison on the island of Cuba throughout their two years in captivity as lower-ranking military personnel carried out Rumsfeld’s authorization.  They were released from Guantanamo in March 2004, and returned to Britain. They then sued in U.S. courts under the Alien Tort Statute, the Geneva Conventions on treatment of military prisoners, the U.S. Constitution, and the Religious Freedom Restoration Act.

U.S. District Judge Ricardo M. Urbina threw out all of the claims except that under the religious freedom law, concluding that those allegations could go forward because the Act did apply to the detainees at Guantanamo because of the scope of U.S. control of the military base and prison there, and because the detainees there were “persons” under the Act.

In its ruling Friday, the Circuit Court unanimously upheld all parts of Judge Urbina’s rejection of detainee claims, but divided 2-1 on the rationale for overturning his decision allowing the RFRA claim to proceed.

Here in summary are the specific reasons used by the Circuit Court as it dealt with each claim:

Claim of torture and abuse under Alien Torts Statute (prolonged arbitrary detention, torture, and cruel, inhuman and degrading treatment) — These claims are barred by the “Westfall Act” (the Federal Employees Liability Reform and Tort Compensation Act of 1988), which is the exclusive source of a remedy for torts by federal officials or employees when they act within the scope of their employment. The actions here were within the scope of employment or incidental to it, th e Circuit Court ruled. Before one may pursue a Westfall Act claim, he must first try administrative remedies. The Court found that the detainees had not done so, and thus their claims failed.

Claimed violations of the Geneva Conventions (seeking damages for arbitrary detention, torture and abuse) — The Circuit Court ruled against those, too, under the same Westfall Act rationale used in rejecting the tort law claims.

Claimed iolations of constitutional rights (cruel and unusual punishment under the Eighth Amendment, inhuman and degrading conditions at Guantanamo violated their Fifth Amendment due process rights) — The Circuit Court ruled that, since it had held the detainees have no constitutional rights, these claims fall.  Aliens held outside sovereign U.S. territory are not covered by the Constitution, it concluded.  Judge Brown, in separate remarks, said that constitutional claims cannot be brought by those who are being detained and interrogated as “alleged enemy combatants” because allowing them to sue for damages against U.S. officials “may allow our enemies to obstruct the foreign policy of our government.”

Claimed violations of rights to religious freedom (interfering with religious practices and beliefs and defiling religious objects) — The Circuit Court concluded that the detainees were not “persons” entitled to protection under the Religious Freedom Restoration Act.  Judge Brown disagreed on this point, concluding that the plain meaning of the word “persons” in the Act covers the detainees. “The majority does not point to a single statute defining ‘person’ so narrowly as to excluded nonresident aliens from its ambit, and nothing in RFRA’s history suggests Congress focused on the term’s scope here,” she wrote.  She agreed that the RFRA claim had to fail, though, finding that the sued officials had qualified immunity because they would not have known that the Act covered people like the detainees.

Judge Henderson also wrote the Court’s opinion rejecting the attempt by a military policy think tank and advocacy group, the National Institute of Military Justice, to gain access to letters, faxes and e-mails that outside advisers — academics and former government officials — sent it to help the government set up military commissions under presidential orders.  The Court majority concluded that these were exempt from compelled disclosure under the Freedom of Information Act because they were “intra-agency memorandums or letters” under the Act’s Exemption 5.  Senior Circuit Judge Stephen F. Williams joined the opinion, while Circuit Judge David S. Tatel dissenting, arguing that the ruling allows government officials to put beyond public reach “any document the goernment would find it valuable to keep confidential.”

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